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.

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.

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.

If she considers to be in H-1 status FMLA (Family and Medical Leave Act) allows up to 12 weeks of guaranteed employment leave in 12-month period. It can be more or less also depending on the state law and remember if there is a medical need, for e.g. if the doctor says you have some medical issues you need to stay extra 6 weeks you will still be in status.

Typically, there is a law on the box that allows you to file a lawsuit against the government. If there has been an unreasonable delay and there has been a certain time period provided. But some courts (depends on which place you reside) have said that the time for which we start counting the delay does not begin until the security clearance are received.  

Question: I am living in Lexington, Ky. My wife and I filed N-400 for citizenship on 2nd Feb 2015. Our 5 years’ green card date was 14th April 2015. My wife already got her interview, oath, passport done 3.5 months back but I am still waiting for my interview. Its already 9.5 months. Our field office is in Louisville, KY and their website shows that their processing time is 5 months. My application is way beyond 5 months. I did submit case inquiries and first time (9/11/15) they told me that “Due to workload unrelated to your case there is a delay” and second time 10/15/15 they told me that “security clearance is being done”. I took the infopass and went to Louisville field office. They told me that my case is with “national service center” I think and they are waiting for security clearance. Just wondering, is there a time limit to the security clearance? I was reading over the web that some people in my situation did something called “writ of mandamus” with the help of a Lawyer. Do you think, this is something an option for me? 

I think what you should do is get with your congressmen’s office. Call your congressmen, tell them to follow up the case. Let’s see what they say. That would be the quickest and zero cost method for you.

Priority Date (PD) is the date when your green card visa numbers are available. It means that you are entitled to get your green card. It doesn’t mean you can get it right away. But it means you are in a stage were you are about to get your green card. So Priority Date is usually the date on which your application was started. In case of family based petitions Priority Date is when I-130 was filed. In the case of Employment based cases it is based upon when PERM was filed. Employment based cases were PERM is not involved, direct I-140 is involved such as National Interest Waivers, EB-1s - Priority Date is the date you file the I-140. Your Priority Date depends upon the date your case was started. That’s one thing you got to worry about.

 When you go to Visas Bulletin which is a monthly publication of the US Department of State it tells you what visa dates are expected to be curbed or in other words where the queue is for the next month. So in December they will issue predictions for January, in January they will issue predictions for February, then on top of that you have to worry about processing times. Sometimes for e.g.: in US Citizen’s cases there is no Priority Date back up, dates are immediately current for e.g.: spouse of a US Citizen, parent of a US Citizen, minor unmarried child of a US Citizen, there are no Priority Date   issues here. In these cases, you have to worry only about the processing times. So when you file the form the form takes set amount of time to process. Now a new concept has been started a couple of months ago, if you go to the USCIS website it tells you if you are in the United States this is the date when you can file your last step of the green card process. If you are outside USA this is the date, you can expect to receive further paper work from the consulate. It doesn’t mean you are going to get your green card right away but you are eligible or close to getting it.

Here is another variable. How much time is it taking at that consulate to schedule interviews. Some consulates are heavily overworked. Some consulates are relatively less worked. So that’s the fourth variable. First variable was Priority Date, second variable is processing times, third variable is final action dates which is also the part of Visa Bulletin a slightly different table, and the fourth is the local processing times.

Question: How can I calculate my sister's possible visa interview? I am confused with these changes on final action date etc. Her PD is 1 Feb, 2011 visa category F2B. She has already submitted dox to NVC. When she was waiting for the visa date she turned 21 and moved to f2b cat.1. When do you think it will be? Which table to consider? At the Visa bulletin one, I mean. 

First of all, if her Priority Date is current normally within a few months, probably less than six months. At the Visa Bulletin the final action table tells you approximately when she can expect her final documents.

Question: Once the other parent becomes citizen in USA would it be helpful to submit another petition for her? Would you advise it to be in the safe side? 

You can. You can file multiple cases for the same individual. That is not a problem. As long as you see some gain in it depending upon the country she was born in, in filing through two separate categories you can certainly do that.

Question: My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD. Can we file H-1-H-4 transfer and EAD concurrently?

Let's take the situation where you are filing H-1, for you yes I do not see any problem with it. If you are doing H-1 transfer, you can do her H-4 and EAD concurrently. However, if you are trying to do H-1 transfer for her along with H-4 EAD simultaneously, that can become little complicated. But I don't know what exactly you are trying to accomplish. If you are trying to cover both basis I would recommend to do an H-1 premium processing and then file an H-4. Let one status accomplish before you apply for the next status. If you want to do both simultaneously make H-1 premium.

Question: Do companies hire full time on H-4 EAD?

That depends upon the company. EAD holders has all rights almost equivalent to the Green card holder. So if the employer knows what this EAD is or they have good legal advice they should be able to hire full time on H-4 EAD.

Question: What are the benefits of H-4 EAD over H-1?

Some really big benefits. One benefit is there is no requirement of a particular salary. Number two is there is no requirement of specific job location. An H-4 EAD holder can work 3 hours in one job, 5 hours in another job location or 10 hours and then keep switching from job to job if they want. There is no limit on how they work. They can even start their own business. So those are some of the big advantages of H-4 EAD.

The biggest disadvantage is because the status depends upon the H-1 holder, something goes wrong with the H-1 status; they get laid off or they fall out of the status then the H-4 status is also in doubt.

Question: Do I recommend to convert to H-4 EAD?

That depends upon the case.

Question: What are the risks associated with the conversion?

From H-1 to H-4 not much risk that I can see.

Question: What is the typical timeline?

That is very tricky. We had a tweet exchange couple of weeks ago with the community member who said that; his wife's EAD got approved in couple of weeks. My office was reporting that H-4 EAD combine can take months. A few months ago they were only taking a couple of months. So few months is not an extraordinary for H-4 EAD combo. If you are doing EAD alone, already your wife is on H-4, it might be quick. Technically there is 90 days’ deadline on the government to decide these cases of EADs. How far they follow it I don't know.

A revocation means that an I-140 was initially approved and then subsequently canceled. Therefore, a revocation implies there was an initial approval. If a case has never been approved, it cannot be revoked; it can only be withdrawn or denied.

For example, let's consider a scenario: I, as your employer, file your I-140 application, and if USCIS informs us that they are denying the case due to certain problems, this constitutes a denial. This is a clear and understandable situation. However, if I, as your employer, submit a cancellation request before the case is approved, that is referred to as a withdrawal. On the other hand, if the case is already approved, and I decide to inform USCIS that I wish to cancel it, this is categorized as a revocation.

Another circumstance that leads to revocation is when USCIS has initially approved a case but later issues a notice of intent to revoke the approval. Additionally, if they discover any fraud, this is a grave matter that should not be overlooked, as it carries criminal implications and can result in a permanent bar for the employee from entering the US.

In summary, when a case is approved and subsequently canceled, whether by the employer or the government, it is considered a revocation. However, if the case is still pending, the only options are withdrawal or denial.