I had my Naturalization Interview today at the Los Angeles office. I applied on October 10th, did FPs on October 23rd and was scheduled for interview for today.
Topics Discussed, Thursday, 17 December 2015:
FAQ: Can TN work on 1099 as independent contractor; Difference between I-140 withdrawn and revoked;
Other: H-1 quota exemption; H-1B denial; H-1B how to file Form DS-160; I-140 revoked, refiling; H-1 L-1 221(g); I-130 processing; I-485 approval while COS pending; I-90 to renew green card; Misrepresentation in visa/ESTA; Contract for B-1/B-2 visa for domestic help from foreign country; Getting H-1 extension I-140 revoked, refiled; DV lottery (NOT my area of expertise); H-1 change of location; Does H-4 extension also extend H-4 visa stamp automatically? I-140 recapture or port priority date; Travelling while STEM extension pending.
This is the latest release from USCIS. I think they are misreading the fees requirement. The law seemed to require higher fees only for L-1 employee counts (see my highlighted comments below under 19 December 2015 entry). The current USCIS release counts both L-1 and H-1 employees even for H-1 filing fees. We will wait and see if this clarified
Effective Monday December 21, 2015, per the Fiscal Year 2016 Consolidated Appropriations Act, the U.S. Consulate in Chennai will begin collecting an additional (U.S. dollar) $4,500 per application for all new Blanket L-1 applications.
I am Canadian citizen and got job offer in USA and going to work on TN visa. They are going to employ me as an independent contractor and are going pay using 1099. Can TN workers work as an independent contractor? Is this something valid and can I accept this one?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://youtu.be/Gl2WiBEALtk?t=68
FAQ Transcript:
An L-1A visa can be obtained for an international manager or executive who manages other professionals or who manages an important function of the organization (“functional manager”). Historically, it has been difficult to obtain L-1A for functional managers. USCIS is more esily convinced where professional employees are being managed.
USCIS published an update to Form I-751, Petition to Remove Conditions on Residence. The new edition is dated 11/23/15.
U.S. Citizenship and Immigration Services (USCIS) has approved the statutory maximum of 10,000 petitions for U-1 nonimmigrant status (U visas) for fiscal year 2016. This marks the seventh straight year that USCIS has reached the statutory maximum since it began issuing U visas in 2009.
USCIS recently began transferring certain casework from the Vermont Service Center (VSC) to the California Service Center (CSC) and Nebraska Service Center (NSC) to balance workloads. The CSC will now process Form I-539, Application to Extend/Change Nonimmigrant Status.
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Hi Folks, I am extremly happy to inform you that I got my Green Card process completed in a record time of one year. I am just back from India after finishing the CP Interview in Chennai successfully. Mr. Rajiv , Ms. Fidelina Baptista and all his staff Suman Bhasin, Amel Berhe, Leila Lehman, Nimia were very helpful in the entire process. Needless to mention that Mr. Rajive is very good in handling EB2 cases. They did a great job in getting my labour and I-140 approvals and also cooperated very well in my persuit through CP instead of the regular I-485. During my I-140 stage, when I called and asked Mr. Rajiv that I want to opt for CP, he immediately agreed and accepted the challenge though it was not very popular at that time. I am extremly thankful to the entire Law office of Mr. Khanna without which I would not have got my Green Card so fast. I definitely recommend the services of Mr. Khanna who are looking for a good and efficient lawyer. Good Luck to all, Chandra.
I found Mr Khanna's office as very professional and prompt.
Mr. Khanna and staff were very prompt in responding to questions. Mr. Vijay & Ms. Nimia took special care in scrutinizing the papers and always went out of their way to get my papers processed in time.
I and my wife recently received our 485 approval notices in the mail. PD: August 21st, 1998 I-485 RD: August 5, 1999 FP: November 30, 1999 I-485 approval: February 28, 2000 Mr. Rajiv Khanna and his office helped us throughtout this process and provided expert guidance and timely advice whenever we needed such. Mr. Khanna was available at very short notice to answer any question and put us at ease many times throughtout this process. He is very much informed about the latest happenings in the field and uses this and his experience to perform the best possible service. I have been thoroughly satisfied with his office and commend their professionalism and honest approach of doing things. We would like to thank Suman Bhasin, Diane Lombardo, Leila Lehman, Fidelina Batista, Nimia Aranibar and Amel Barhe for their professionalism and hard work in getting us through this process. This would not have been possible without their help and support. Finally I would like to add that for anyone looking for a hard working, accessible, knowledgeable and trustworthy immigration lawyer, Rajiv Khanna and his office are a sure thing!
I just got the I-485 approval yesterday in the mail and Rajiv informed me about it through an email. I am writing this feedback to let people know of excellent and extremely professional job done by the law offices of Rajiv S. Khanna. (all dates given below.) Rajiv used the RIR process for my labor certification, getting the LCA in a very quick 3 months time period. I had to wait for my PD to become current to file the I-485. My dates. PD 7/97 RD 4/4/99 ND 4/22/99 FP 8/20/99 FBI processed it on 9/23/99 and approval 02/29/00 Thanks a lot to Rajiv and his associates. I am all praise for them. will gladly refer them to you anytime. Rahul Vyas.
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1. My employer filed my I-140 and it was approved. They refused to provide me the approval notice but through InfoPass I was able to get my receipt number and Alien #. To port my priority date, I would like to request USCIS for the duplicate copy of I-140 approval notice.
2. Is it possible to request USCIS a duplicate copy of my I-140 approval notice using either G-639 (FOIA) or I-824 (Action on an approved application or petition) or any other method as I have my receipt#?
FAQ Transcript
Answer 1. People typically file a FOIA request. File the Form G-639 (Form G-639 - USCIS). Often you get copies of all kinds of documents. Government gives you copies of documents they have on you. It is not consistent but people have got copies of their 140 approval notices, copies of their H-1 approval notices, the entire perm package. So it is worth filing a FOIA and it doesn’t cost you anything. It can take a little bit of time a couple of months maybe three months but do file it if you don’t have documentation. You can port the Priority Date with your alien number itself and receipt number as well. It should not need a I-140 approval notice. Remember the government has that information already. They don’t specifically need it from you.
Answer 2. By all means file the form. File G-639 and not I-824. File G-639 and let’s see what they give you.
I have been laid off by my current employer, with severance paycheck coming at regular pay intervals until mid January-2016. Finding a new employment is taking time. I am on H-1B which first started on October 01, 2013, latest I-797 valid until December 2017.
1. How long do I legally have, before I become unauthorized to stay? What constitutes as unlawful presence?
2. My I-94 admission validity is until October 2016; with no employment, does this mean anything?
3. Before I transition into a new H-1B, can I travel outside and into the country, without a Change of Status? Can I use severance pay checks if asked, for entry purposes?
4. Can I use my severance pay stubs as pay stubs when my next employer applies for new H-1B?
5. I am hesitating to inform my next employer about my termination, thinking that this may impact my hiring decision or my ability to negotiate. But not indicating terminated employment, is it possible that my H1B transfer or new petition may be considered unethical?
6. In your experience, how long does the USCIS take to update a revoked H-1B petition in their systems?
7. If my new employer files for H-1B transfer before the update but with pay stubs older than 30 days, do I have to mandatory leave the country for new H-1B stamping before starting to work?
8. If such is the case, is it best to change to a B-2 status and have my next employer apply for new H-1B? If yes, I would assume that I will be cap exempt until September 30, 2019 plus the days spent on B2; would this be a fair assumption.
9. Can my employer continue to pay severance checks when I am on B-2 status?
10. What happens if my new employer applies for H-1B transfer with severance paychecks, after USCIS has updated their records?
11. In your experience, what gap in unemployment is generally ignored by USCIS when filing for new H-1B or transferring new H-1B?
12. What other words of wisdom do you have for me?
If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.
Answer 1. Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.
However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government. I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.
Answer 2. Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2 or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.
Answer 3. No because you don’t have a job. If you use the same visa to come back in, that could be fraud.
Answer 4. The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.
Answer 5. That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer.
Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.
Answer 7. It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.
Answer 8. B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.
Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US. You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor.
You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.
Answer 9. Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working. In order for employment to be unauthorized there must be a payment or remuneration as well as work. If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.
Answer 11. There is no consistency. I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done for two or three months. Most of the times they are not tolerant of this issue at all.
Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.
I have a delayed birth registration certificate issued by municipal authority with place of birth: hospital name, city. My passport just got the city name as place of birth. Do I need to submit secondary evidence when I file I-485 because of delayed registration?
In many countries especially India, Pakistan, Bangladesh, it can happen that the birth occurred much earlier but the registration of the birth was done much later. Remember it was not the law that you have to register every birth, it was a voluntary action. So if a child was born in 1980 or 1970 you registered the birth in 2015 because that’s when you needed to get the green card. Now those are not acceptable registration. What you should do in those cases is get a letter from the municipal corporation, or local government, that says before this was registered there was no other registration. Like a non-availability before the registration. Along with that get two affidavits, from your parents or other people, who were alive when you were born, that will take care of it.
Secondary evidence becomes acceptable only when you can’t get non-availability from the municipal corporation and that’s a much more complicated area. I think you should get the non-availability.
I am holding a Canadian student visa, now is my second year in Canada. I was issued a B-1/B-2 visa last year. Then I was charged of Theft under $5000 this June, and the charge goes withdrawn-diversion in July. When I went to US Embassy for visa renewal this October, the officer asked my about the charge, and I answered honestly that I did it on purpose and I really regret my behavior. He rejected my class B visa, gave me a pink paper, which says the denial is under Section 214(b), which says that alien doesn't show strong ties with home country. After I carefully searched online resources, I found that my admission of the offence will make me inadmissible to enter US, as a moral turpitude. But the officer didn't say that I need waiver to enter US.
1. So my question is:
does this mean that their denial is not based on the Crime of Moral Turpitude, but I really didn't show strong ties? Or they just don't reject me explicitly with the real reason? I will marry a Canadian citizen next year so it would be a strong tie then. Or do you suggest me to apply for Waiver of Ground of Inadmissibility like I-106 whatsoever?
2. Another question is:
I got an offer of a big well-known US company for summer internship, and I need to apply for J1 Visa. How will the charge affect me J-1 application?
First of all, not every crime leads to serious consequences in USA. There are two kinds of crimes. Misdemeanours which are small crimes, punishment is typically less than a year and the other felonies where the punishment is a year or more, those are more serious crimes. In immigration law we look if the crime is of moral turpitude or not. If a crime is not of moral turpitude, I believe it has absolutely no consequences, unless it is a drug offence. Moral turpitude simply means that you are doing something, which reflects on your poor moral character.
The next step: is it misdemeanour or felony. If it is a felony, we almost certainly have a problem. It could lead to deportation, non-admission, and then you will need a waiver of some kind. Waivers are usually available for green card only for family based reasons. You cannot get a waiver just because you want to come to USA. So in an employment based case, and you have a felony conviction for moral turpitude crime you will not be able to come to USA.
Remember the rules are different for deportation, what is called removal and admission. So when you try to enter you could be subject to different laws, sometimes you think you are in USA and I am safe, because your lawyer told you are not going to be deported, but when you come back they won’t let you in and now you have to go back, the reason is the rules for admission are different. This is a very complex area of the law.
Question: What if I am convicted of misdemeanour involving moral turpitude?
First, how many misdemeanour convictions do you have. If you have multiple convictions, then that itself is ground for deportation removal as well as no admission. But if you have only one offence, a misdemeanour, and the actual punishment imposed was less than six months you are covered by something called petty offence exception. Which says we forgive you entirely as long as it was just a single misdemeanour.
The rules under immigration law and the rules under criminal law for conviction are very different. Sometimes you have a criminal defence counsel. He will tell you this is not a conviction. It may not be a conviction under criminal law but is a conviction under immigration law. Any kind of plea bargain you set up with the government where you are admitting directly that you committed the crime would be considered in all probability to be a conviction. So be careful when you discuss this with your immigration lawyer as well as criminal counsel.
Question: What is 212(d)(3) waiver?
Say if you got the kind of conviction where you cannot come back we can let you in on a temporary basis for a non-immigrant visa. 212(d)(3) applies only to non-immigrant visa and the situation has been a little uncertain, especially for Canadians. I think there is a certain timeframe where you can get it or for one visit you can get it.
Question: I am holding a Canadian student visa, now is my second year in Canada. I was issued a B-1/B-2 visa last year. Then I was charged of Theft under $5000 this June, and the charge goes withdrawn-diversion in July.
Normally diversion means some kind of a plea bargaining has been made.
Question: When I went to US Embassy for visa renewal this October, the officer asked my about the charge, and I answered honestly that I did it on purpose and I really regret my behaviour. He rejected my class B visa, gave me a pink paper, which says the denial is under Section 214(b), which says that alien doesn't show strong ties with home country. After I carefully searched online resources, I found that my admission of the offence will make me inadmissible to enter US, as a moral turpitude. But the officer didn't say that I need waiver to enter US. So does this mean that their denial is not based on the Crime of Moral Turpitude, but I really didn't show strong ties?
That is correct because they denied it based upon their inability to verify that you will come back.
Question: I will marry a Canadian citizen next year so it would be a strong tie then. Or do you suggest me to apply for Waiver of Ground of Inadmissibility like I-106 whatsoever?
Definitely that will make it a much stronger tie and you can try again. You might be covered by a petty offence exception.
Question: I got an offer of a big well-known US company for summer internship, and I need to apply for J1 Visa. How will the charge affect me J-1 application?
If you are covered by petty offence exception, then even J-1 is not affected but the 214(b) denial, affects your J-1. If you had a 214(b) denial, it will bar your entry for J-1, F-1, B-1, B-2. It will not bar your entry for H-1 or L-1. I suspect the officer realised you were covered by petty offence exception.
What is I-485 Pre-adjudicate/Pre-adjudication?
How soon must I join my future green card employer?
Situation -
I have my EB2 India PD as March, 2008. I applied for I-485 in Oct 2014 (Future based GC application). My PD is not current as of yet but I have got an RFE for expired medical form I-693 ONLY in Oct, 2015.
Question: What is I-485 Pre-adjudicate/Pre-adjudication?
You are at the last step of the green card process. Your priority dates became current, you filed the I-485, then the priority dates slipped back two years, at this time USCIS has two choices. They can either put your file in their filing cabinet and forget about the case, until the priority dates become current again. Or they can sit down and can say look we have time, let’s go over the case, adjudicate all the details, decide that the case is completely qualified to receive a green card, so we pre-adjudicate, decide that the person is entitled to get the green card. Make a note on the file. If you need some documents, we send an RFE get the documents so when the priority dates become current again all we have to do is issue the green card. That’s pre-adjudicate.
Question: How soon must I join my future green card employer?
There is really no rule of thumb. But within a commercially reasonable period of time. Three to four months maybe, after approval of the green card, you should join the future green card employer. In your particular case that appears to be a requirement sometimes it may not be a requirement because of AC21 and remember AC21 portability is available even in future employer green card cases.
Hi Folks, I am extremly happy to inform you that I got my Green Card process completed in a record time of one year. I am just back from India after finishing the CP Interview in Chennai successfully. Mr. Rajiv , Ms. Fidelina Baptista and all his staff Suman Bhasin, Amel Berhe, Leila Lehman, Nimia were very helpful in the entire process. Needless to mention that Mr. Rajive is very good in handling EB2 cases. They did a great job in getting my labour and I-140 approvals and also cooperated very well in my persuit through CP instead of the regular I-485. During my I-140 stage, when I called and asked Mr. Rajiv that I want to opt for CP, he immediately agreed and accepted the challenge though it was not very popular at that time. I am extremly thankful to the entire Law office of Mr. Khanna without which I would not have got my Green Card so fast. I definitely recommend the services of Mr. Khanna who are looking for a good and efficient lawyer. Good Luck to all, Chandra.