American Law Institute- American Bar Association Seminar - Immigration Law
Attached is the course material for a seminar done by Rajiv for ALI-ABA ( American Law Institute - American Bar Association ).
Attached is the course material for a seminar done by Rajiv for ALI-ABA ( American Law Institute - American Bar Association ).
The E-3 visa allows for the admission of an alien who is a national of the Commonwealth of Australia and who is entering the U.S. to perform services in a “specialty occupation.” The E-3 visa has many advantages over the other types of working visas, including the ability for spouses of E-3 recipients to apply for work authorization.
The Child Status Protection Act (CSPA) changes who can be considered a “child” for the purpose of visa issuance by the Department of State and for purposes of adjustment of status of aliens by USCIS.
Here's the situation: LPR wife is pregnant, currently visiting her in-laws overseas. The LPR husband will travel overseas later to see his parents and both husband and wife will travel back to U.S together. The couple wants to invite husband's mother who has been rejected twice for a visit visa for tourism purposes. Last rejection was more than a year ago.
Q1.Should the mother take visa appointment for interview before her son arrives overseas to see her so she can tell interviewing officer that she wants to see her son in the States in addition to tourism purposes. This may make her case stronger as a mother wants to see her son.
A1. I am never in favor of trying to manipulate consulates. This could be considered outright fraud. Let us not go this way. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a care taker or a health care employee.
I have read that in some cases of H1B as follows "They had H1 petition and H1B visa was stamped in 2012 but they never traveled to the US on that. And when a new employer applied for a cap-exempt H1B petition in 2017 they got it approved with change of status to H1 in May 2017...Whereas in my case I also didn't use this H1B visa and I even didn't travel to US i.e. My employer filed H1B in 2016 which got approved in Sep 2016 and after my resignation, they revoked H1B in Nov 2016 (which is > OCt, 1 2016), but I got a Denial. When contacted few attorneys they said I may get "Approvals" Or "Deny" in such cases, nowadays its more of details saying I am NOT cap exempt?
The first principle is if you are in the United States and you do not get a change of status you are not exempt from the quota. The second principle is if you are outside the USA and you don't get a visa stamp you are not exempt from the quota. Now in both these cases whether you join the job or not is irrelevant. So the third principle is whether you are joining the job or not is irrelevant.
If you are in your home country you must get a visa stamp if you don't, you are not exempt from the quota. If you are in the USA you must get a change of status otherwise you are not exempt from the quota. Hence principal number four is that if your approved H-1 is revoked before October 1st then you are still subject to the quota and the last principle is if your H-1 is revoked for error or for fraud or misrepresentation you are still subject to the quota.
H-1B and H-1B1 workers are granted a number of important rights including:
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
Immigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney Rajiv Khanna
FAQs
- Switching employers while one's spouse is on an H-4 visa and the steps to ensure a smooth return to the U.S.
- H-1B or green card misrepresentation: Legal options and consequences for fighting back against USCIS
- Options for extending stay in the U.S. after layoff as an international student pursuing a Master's in IT
- Potential visa complications for an H-1B visa holder due to past employment with a blacklisted company and alternatives for obtaining an H-1B stamp
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Processing Queue | Priority Date |
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Analyst Review | July 2022 |
Audit Review | April 2022 |
Reconsideration Request to the CO | August 2022 |
Published by: Live Mint: May 04, 2023
https://www.livemint.com/news/world/us-visa-process-to-tighten-up-amid-…
Quotes and Excerpts from Rajiv in the article:
Following up on the announcements of April 21, April 27, May 1, and May 8, 2023, the Office of Foreign Labor Certification (OFLC) is postponing the date for filers to begin submitting the new, revised applications for permanent employment certification and CW-1 applications for temporary employment certification in the Foreign Labor Application Gateway (FLAG) from May 16, 2023, to June 1, 2023. Applicants should continue to use the current PERM and CW-1 forms until such time.
A. STATUTORY NUMBERS FOR PREFERENCE IMMIGRANT VISAS
If I change my employer while my wife is in India on an H4 dependent visa, will she be able to return to the US even though her visa stamp bears my old employer's name? She has valid stamping till Sept 2024. What steps should we take to ensure a smooth return to the US for her?
No, it is not a problem as long as you maintain your H1-B status. Whether you have changed employers or are in the 60-day grace period, she can return on her H-4 visa without any issues. Even if her visa stamp bears the old employer's name, it does not matter. There are no specific steps to take in this situation as it is perfectly legal.
This article is part of the continuing series of interviews between The Practical Lawyer Editorial Board Member Rajiv S. Khanna and leading practitioners across the country, designed to provide personal and professional insights into various areas of the law.
Read more by clicking the pdf attachment.
1. Have you taken cases of H1B or GC fraud or misrepresentation?
2. What are the consequences if caught - Just losing status and deportation? Can it lead to Jail in any case?
3. Can we fight back in court to justify our case and win against USCIS?
Yes, our firm has taken cases involving H-1B or green card fraud or misrepresentation for about 30 years. Our focus is on employment and business-based immigration and related cases. Our firm has also assisted criminal defense teams in similar cases. If caught in a fraud or misrepresentation, the government can choose to prosecute you criminally since most immigration papers are filed under penalty of perjury. This can result in imprisonment for up to five years, as felonies are serious crimes. From an immigration perspective, a misrepresentation or fraud can lead to a permanent bar from entering the United States, causing you to lose your stay and potentially be unable to return. However, if you did not intentionally lie or the misrepresentation was immaterial, you can fight back in court by asserting defenses such as lack of intent or immateriality. For example, if a minor detail unrelated to the visa decision is misrepresented, it may not be considered material. These are some of the grounds to consider when fighting against misrepresentation. If you don't have any valid arguments, it may not be worthwhile to fight your case.
I came to the US in Aug 2015. Completed masters in 2017. Started OPT on 07/2017. When applying for OPT EAD I joined employer AZTech Technologies. I joined as an intern and was there for like 4 months. He responded for 2 months during training, after a couple of months employer did not respond at all. I got a doubt and found another job and moved to a different company. Later I got an H1B and I 140 approved. I am planning to go to India this August 2023. Recently I found out through social media that the company I joined in the initial stage of OPT EAD was a black listed company. Most people who joined those similar companies' visas got rejected when they went for stamping. I am going for H1B stamping. Will there be a problem in my case? Could you please advise me in this case? In an emergency situation, I need to go to India. I heard from some friends and social media groups out of my research that I can go get stamping done in other countries and then travel to India and can be back to the US.
Firstly, it is crucial to be truthful and transparent about your employment history. Attempting to hide or misrepresent any information can have serious consequences. If there is misrepresentation in your background, it is possible that you may be barred from entering the United States permanently. Unfortunately, there may not be much we can do to change that outcome.
It is advisable to consult with an immigration attorney who can assess your specific circumstances and provide personalized advice based on the current immigration laws and regulations.
I moved to the USA to pursue my Master's in IT. Unfortunately, I have recently been affected by mass layoffs in the tech industry, leaving me with only 30 days to extend my stay in the country to address household responsibilities and potentially secure a full-time job.
I have researched a few options for extending my stay and would greatly appreciate your guidance on these alternatives:
1) Apply for a B2 visa promptly: This option would allow me to remain in the country for an additional six months (until July or August) and continue my job search.
2) Enroll in a community college and obtain an I-20: Many community colleges do not require GRE or TOEFL scores, and their Fall semester usually begins in mid-August. This cost-effective choice would give me time until December, and I could transfer any earned credits to a university if needed.
3) If more time is required, I could join a university in the Spring semester and transfer my community college credits. However, I understand that applying for an MS or PhD program would necessitate a direct application to the university.
If you are facing a layoff as an international student pursuing a Master's in IT and seeking to extend your stay in the US, there are several options available. One option is to apply for a B-1/B-2 visa. Please visit Rajiv’s blog at immigration.com for more information.
Another option is to enroll in a community college and obtain an I-20. This can provide you with additional time in the US. If more time is required, you could consider joining a university in the spring semester.
Curricular Practical Training (CPT) is another option to explore. There is another blog entry specifically discussing CPT, which you should read for more information. Additionally, there is an option to secure a quota exempt job. Our website features frequently asked questions that address quota exempt jobs, so be sure to review them.
FAQs: Removing spouse from green card processing || Multiple green card petitions simultaneously and exploring concurrent filing of EB-2 NIW || What are the consequences of H-1B or green card fraud or misinterpretation? How does it affect my departure, assets and financial matters? || Transitioning from H-1B to I-485 GC EAD: maintaining status and re-employment considerations
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
Immigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney Rajiv Khanna
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
Immigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney Rajiv Khanna
If I am convicted of H1B/Green Card fraud or misrepresentation, resulting in a permanent entry ban, the following inquiries arise:
How soon must I depart from the US?
What will happen to my assets, such as my house and bank account funds? Will they be subject to seizure?
Can I sell my house and withdraw the money before leaving the US?
If you are convicted, which implies involvement in a criminal case, you will be unable to leave the U.S. without serving your sentence. If you receive a jail term of six months, one year, or five years (or any other duration), you must complete that period before departing. The timeline for your departure depends on the current status of your case. It is not advisable to stay in the U.S. illegally, considering that you are already facing the worst outcome—a permanent ban from entering the U.S. Overstaying by an additional six or eight months would result in an additional bar of three to five years on top of the existing permanent ban of three to ten years. As for your assets, unless there is some form of asset forfeiture, you can take your money and sell your house before leaving.