Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.
FAQ: US Citizen applying for Green Card for visiting family member (spouse/parents); Birth and Marriage Certificate Issues; FAQ: Getting nanny/domestic help from India; FAQ: After getting Green Card - how long do you have to stay with your employer.
We have been working with Mr. Khanna and his team for years and we cannot thank them enough for all they do for us. I like to share a comment that I just received from one of our employees who recently received his H1 approval: "Really appreciate Immigration lawyers for thoroughly review the documentation. I am glad for this approval and believe all their efforts are reflected in this approval."
On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:
I am looking for opportunities using the remainder option of my H-1B. I have a year and half remaining out of six years.
Now, most of the companies do not want to start the GC process immediately; they want to start after 6-12 months.
I have the following two questions:
1. What stage do I need to reach on my GC process when the remaining time on H-1B ends.
2. If my company doesn't want to start GC process immediately, can I begin this on my own using my personal fund?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://youtu.be/3Heaadpk1Ik?t=273
FAQ Transcript:
My name is Harendra having H-1B and an Indian national , I want to file H-4 for my wife who is a Srilankan national with Srilankan passport , living in India legally with my parents after marriage for the past three months. Can she apply her H-4 from India or she needs to go back to her native country to apply ?
Is there any rule for spouse applying visa from primary applicant's country of residence?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://youtu.be/3Heaadpk1Ik?t=396
FAQ Transcript:
Rajiv and his whole team were a very great support. They know their job and handeld my wife's H1 & my H4 applications very professionally. My wife and her employer are also engaging his services for her green card. I would recommend his services to anyone who has any immigration matters to be handled.
Fraud Allegations in Immigration Law
Recorded on 12th July 2012.
I wanted to talk to you folks today about an issue that has become problematic in the last four or five years - fraud or misrepresentation. Very often, I see that the government very casually throws in an implication that you have committed a misrepresentation. Actually, they will come out and say that we find misrepresentation. You will think that this is a normal, ordinary thing, and you might ignore it. I have seen people get into so much trouble with that fraud or misrepresentation finding. Let me talk to you about what can happen with that.
First of all, a fraud or misrepresentation finding can lead to criminal prosecution. You can be prosecuted criminally, if the government so chooses. I have seen companies being prosecuted for amazingly trivial things. I have seen government start with a 43 count indictment of a company and then walk away with “Failure to report change of address” or something so trivial that it makes you wonder why did the government spends three, four, or five million dollars on the prosecution of these kind of cases. We have provided advice and help to various defense teams all over the country in criminal defense of these kind of cases. My bottom line approach in these cases is, you’ve got to be extremely careful the moment you see any implication or finding of fraud or misrepresentation. Speak with counsel or speak with somebody who knows all sides of this picture. Unfortunately what happens is, if you are only concerned with benefits like an H-1 or an F-1 or an L-1, you probably won’t pay too much attention to ancillary findings other than the fact it has been denied.
Let us talk about what can happen if there is a fraud or misrepresentation finding a little bit more in detail. The worst thing that can happen is a criminal prosecution. You can go to prison over this, make no mistake, if there is in fact a finding that was not rebutted and then there was a subsequent investigation and more evidence was collected. I will give you this--criminal prosecution and conviction are not as easy as just throwing out a finding and it is surprising how easily USCIS and other agencies toss around that finding, “Oh, this is misrepresentation.” The moment I see that word, I know it is a buzzword for us to go all out for this issue and make sure that the government has it on the record what our side of story is.
So, criminal prosecution is not easy but it can happen. Be careful. Deportation, removal, exclusion. What does that mean? If you are in USA on a visa, F-1 , B-1 , H-1 , L-1 any visa, and they find that there is some fraud or misrepresentation in your past or present, the government can initiate deportation, more accurately, removal from USA, and you can then be barred from coming back to USA for up to permanently . And I am saying that again so that you folks understand. Any attempt to procure a visa or immigration benefit, note that “attempt.” You do not have to have been successful. Even in an attempt could lead to a permanent bar from entering USA.
As I recall, there is only one waiver available based upon a family member--immediate family member-- who is a US citizen or permanent resident, but then you have to convince the USCIS that you should be given that waiver and there is extreme and exceptional hardship on your relative. I recall that is the waiver that is available for these things .Third thing that can happen is denial of sought benefit now or in the future. So think about this very carefully. You applied for an H-1. For some reason, they said, “Oh, your degrees are fraudulent,” and I have seen these kind of cases .They thought that the degrees were fraudulent merely because there was no confirmation of certain kinds of things. For example, you just gave your transcripts. You did not give your final diploma, and USCIS, after doing some cursory checks, decided that you had not been able to prove your case. Instead of merely saying that you have not been able to prove your case, they will throw in something very casually saying, “Oh, this is misrepresentation.”
Next thing is, you get stuck when you apply for an H-1 again. They will pull up the record, and they will say you have a misrepresentation and we cannot give you the benefit. So, in the future, this can come back and haunt you. Next thing that can happen is, if there is any misrepresentation finding, let’s say you applied for an H1 transfer and they found fraud they can revoke whatever they have given you. Now remember that when I say that they find fraud, they do not even, this is very sad, but they will just throw in the finding without considering, and I have seen too many cases like this. It is awful for the government, and I do not think government. Let me rephrase that. I do not think any government officer individually is IQ challenged, but I think, as an organization, the moment we get into a bureaucracy, we are dealing with very unintelligent bureaucracy. Without considering the consequences of what they are doing, they will throw in a finding of misrepresentation. So your benefits can be revoked, and as I said earlier, you can get a permanent bar from entering USA.
So the next question is “When does this come up?” Normally, when a fraud or a misrepresentation finding is made, typically, where do they make this finding, they can do it at the consulate during visa application. I talked with some individuals yesterday, such an easy case and because of a misunderstanding, it’s become a complete problem. What was the case? Boy and girl meet, they get married. According to South Indian ceremonies, I do not want to say the exact state, but South Indian ceremonies, and the marriage occurs in a temple. According to the law of the state where the marriage was entered into, until the marriage is registered, it is not valid. However, when the lady goes for a K-1 interview (K-1 is for fiancées; if you are married you cannot get a K-1), the consul officer grilled her quite thoroughly and decided that she was lying and that she was already married. Next thing, they put a permanent bar on her. Now she is under permanent bar. The husband is scrounging around, trying to get some way of getting her back in. Of course, she will make it back in this particular circumstance, because there is a bunch of factors that go in her favor, but this is a tough case. And normally, US citizen spouses, actually, unless there is a unique case, I usually tell people do not even hire a lawyer. Is this is ethically okay? I think it is. In my judgment, certain cases don’t need a lawyer. Typically, spouse of a US citizen is such a plain and easy case. But look at this example and how badly this got messed up. So now, during a visa application, you’ve got a bar.
What other circumstances? Remember the Tri Valley University? A lot of you might remember that. There were some misrepresentation implications for certain groups of people, not everybody. They had a lot of problems getting visa stamping again from the consulate. Second place where it can happen is at the airport. When you land at the airport, the CBP (Custom and Border Protection) can haul you up there. I have seen cases where somebody said, “Oh, I am coming in for a visit” and the CBP officer went through the luggage of the individual, and they found letters showing that they were meeting up with some potential employers or they were applying to schools. Immediately, there is a fraud implication and the next thing is two things can happen. If they want to be kind, they will let you withdraw your application for admission and tell you to take the next flight back home without coming into USA .If they want to throw the book at you, they can ... actually there is a third possibility. Second is if they levy an exclusion on you, which basically means, we are formally denying you entry into the United States. Now you are barred for five years from coming back. But to throw the book at you, they would deny your entry based upon misrepresentation. Now you have a permanent bar. So these are not simple matters, ladies and gentlemen. They can be quite complex. Please make sure you have competent help if you see any implications or fraud or any chance of fraud in your application.
Then the next thing is you can have a fraud or misrepresentation come up during benefits application. In H-1, hiring without a project, the government now considers that to be a fraud. I do not know how at what point of time hiring somebody without a project became a matter of a fraud. I still think the jurisprudence-- the law in this area--is very poorly developed and poorly managed. But who wants to take a chance for the criminal court? Who wants to go in and spend 800,000 dollars, a million dollars, defending yourself if the government wants to take the stand that this is fraud? So do not hire somebody without a project, employers. That is now considered to be a fraud. I have seen indictments that said that specifically.
Inaccurate Job duties. An H-1 employee is supposed to be a System Administrator, but they are working as a Software Engineer, developing but not doing any administration. That can be a problem. Why? It can be a problem in depressing wages. System Administrators are typically, though it could be other way around, paid differently that a Software Engineer. Actually, if you hire somebody at a lower wage and make do to a higher paid job, that is a problem obviously. I have seen failure to post LCAs at client sites. If you have employees working at end client sites, I have seen the government try to make a fraud case out of that, because, partly, I think it is justified. There is something that we have to look at very carefully, because they can say, “Look when you signed the LCA. You made a representation to the government, ‘ I have posted this application at the end client site.’” That gets quite complicated. So this was H-1. There are many examples I could sit here and talk about for hours. But I just want to give you kind of a flavor of when these things happen and crop up.
Green cards. I remember a very weird case where, when filing the green card application (the perm application), the employer, who is a fairly good-sized company, signed the application without reading it through. The 9089 was prepared by lawyers and it was not mentioned that the employee is related to the company president. It was his brother. The next thing is, USCIS denied the I-140, and, on top of that, they said this is misrepresentation, and we are also revoking the labor certification. When I gave a consultation on the case, I immediately moved in and took certain steps, and I will get to that when I come to the next topic, which is what should you do. But the point is, government’s contention was that in looking at the ETA 9089 perm application, it says, “I have read this application.” It specifically says that. So if you are signing that as an employer or even an employee, you better read and make sure all the material information in there is correct. I have seen this issue come up a lot during Adjustment of Status. Where do they come up the most? Well, mostly lately, it has come up when government says, “Look, you are on H1 and you are authorized to work for an area in California, but you worked in Chicago.” Here is the employee who is stuck with the fact that they cannot do anything about where the LCA was filed by the employer, but now they have got a fraud implication on their record. Well, we deal with it, we make matters clear. We explain the law to the government. But it is still quite hasslesome and bothersome to be in that situation. Anyhow, go ahead and be careful and watch those whenever you see fraud or misrepresentation come up, just make sure it has been taken care of and properly addressed.
When else during Adjustment of Status? G-325-A. When you file the G-325-A, which is the biographical statement, government can take--I have a case actually, in which the employee neglected to mention two or three jobs that they had done illegally. It was definitely an oversight, no question about that, because he disclosed other things. And if he were going to try to deceive the government, he would have done a lot more than merely omit those two jobs. So that became a big problem. They are trying to bar him permanently. We have a MTR (Motion to Rehear) pending against that. During naturalization, there is an interesting case--interesting for me, but sad for the people who are involved. A gentleman ran a company—again, a relatively good-sized company--and somewhere about six or seven years ago, they had submitted a letter from an end client in support of an H1, which the government considered to be fraudulent. They said they could not verify the letter, and they made, I do not remember if they made an express finding a fraud. But they did say that they were not able to verify, so there is doubt as to the veracity of the document. Doubt as to the veracity. Okay, that does not alert you. You do not think, “Well, they are not saying they find fraud, but that is what they are saying. Okay, six or seven years later, they have a lot of approvals for their H-1 after that green card with no problem. Employees have been doing fine, and the issue never came up. This gentleman applies for naturalization. Guess what? Barred from naturalization. The government may go after his green card. Why? There is a fraud. So this issue comes up in naturalization.
It can come up in courts. Sometimes you are there for unrelated proceedings, for example divorce. Next thing is, there is a misrepresentation element or an element of fraud that you have not considered, and you are stuck. The worst case that I have seen come up , which was very unfair and sad is, when an employee on H1 fell out of status for a month or so. Under the law, if you are out of status for even one day, by operation of law, your visa is considered to be cancelled. So the Visa stamp that you have on your passport is cancelled. Very few people know this law. Of course, as they say, ignorance of law is no excuse but when the law is so complex and so difficult to keep track of, who can know when something has been voided or made invalid by operation of law? Nobody can keep track of that. It is something that happens quietly, perniciously in the background. So, when this gentleman applied for Adjustment of Status, his 485, government said, “Your last entry into USA was fraudulent because you used the VISA that was void by operation of law.” I do not think he is going to have much trouble ultimately, but he is definitely being dragged around for misrepresentation. See, I do not mean to imply that the government is always unreasonable, but they can be. Individual officers can be sometimes be very unreasonable and overzealous in what they feel is the right application of the law.
What should you do? Look at the left hand side of the screen. Clarify the record even if you lose the case. You want to make sure your story, your side of the story, is on the record. I do not care if you lose the case. So what did we do in that? Remember I talked about the president who signed the 9089 not realizing that he had signed saying that they were not related to each other, the beneficiary and he were brothers. So what we did was, we immediately filed an appeal, and the appeal got dismissed, but we told our entire story. We explained what happened. We went through the entire document trail. We submitted documents and I think even though the company may not realize it, by doing that, they have now put their own story on the record. So tomorrow, if this issue ever comes up, whoever at USCIS is reviewing his case, they can see both sides of the picture before they deny any future benefits like naturalization. Now we have both sides of the stories there. Appeal it, file a motion to reopen, even file a lawsuit. All of these things you can do.
And what else can you do? If nothing else, send out a letter. Make it clear what the record was. I believe that should at least provide you a modicum of good defense .Good luck, folks, and it is good talking with you. I think I want to do a video next time about these I-140 revocations. I am seeing I-140 revocations coming up after 8-10 years of having been approved. Highly unfair. Let me get into that next time. Good talking with you.
Mr. Khanna has always been helpful ever from applying my H1B through his office until today. I have always taken his words for granted and he was never wrong. I sincerely thank him for taking time to talk to me whenever i needed his advice! Thank you so much, Sir!
FAQ: H-4 EAD filing while H-1 extension is pending; H-4 EAD. Converting from H-1 to H-4 EAD - good idea or not? H-4 EAD. Documents needed; name issues; processing times, etc.; H-4 EAD Expediting Possible?
Other Topics: Green card issues because of diseases; H-1 amendment with change of location; when is a degree considered to be completed;
My spouse is on H-1 visa and his former employer filed I-140 and then my spouse changed his employment to another employer and transferred his H-1, the I-140 has not been revoked by former employer. So my H-4 is with the former employer valid for three years, and current employer for my spouse has not filed H-1 for me. Is the H-4 from the former employer valid for file EAD or do I have to apply for H-4 again and what would be the documents that would I need to file H-4 EAD ?
Every time the H-1 holder changes job, the H-4 holder does not need to re -apply for H-4. Your H-4 is good. You don't have to have different H-4 for the employer. Of course, every time the H-1 holders change their job they have apply for new H-1 but as long as you never violated status and H-1 holder has never violated status that H-4 continued to be good from job to job to job, you are good.
Your second question was what document need to file H-4 EAD?
I got my H-1B petition approved last year, it got extended as well. I have never used any of these visas to work in the U.S. though I have travelled few times to U.S. but on B-1 visa for meetings with the customers. So the question is when do I become exempt from the H-1 quota?
In your situation when you are outside the USA, you become exempt from the H-1 quota when you get your visa stamped. So I think USCIS interpretation of law is faulty and incorrect, because in my view as soon as H-1 is approved you should be exempt from the quota but USCIS has taken the position that unless you get the visa stamped from the consulate we will not consider you exempt if you are outside the USA. So it appears to me that you should be exempt from the quota.
My I-140 was approved on Sept 2011. I came to US on 2008 beginning on L-1 visa and then my employer converted to H-1 visa. On February'15 I got an extension on my H-1 visa based on I-140 approval but I didn't get it for 3 years from Feb'15 rather I got it till Nov'16 (about 1 year 10 months). I am thinking to join another company now. What should I consider before I transfer my H-1 to employer B from employer A on my situation? My wife is on H-1 and it’s valid till 2018. I am also thinking my wife to apply H-4 EAD rather continuing on H-1. Is that going to be a better option?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
FAQ Transcript:
Q1. Among the documents needed for filing H-4, what are the ones we really need to make sure, we have them. I mean few like Date of Birth Certificate from Indian Municipal/Registration office..... is that needed even for H-4 EAD. What if the name on the Birth Certificate from Registration office is different from name on Passport? What should be done here? Any other documents etc. we need to be careful about and should be working to get ready now. (Education certificates and marriage certificate etc. we already have)
Q2. Would it again be first come -first served in terms of filing H-4 EAD? I mean people who file on May 26-27 --would their applications be processed earlier than the ones who file little later.
Q3. Approximately how much time it’s expected for EAD to arrive, everything going well
Q4. One last question, if I happen to change my employer at this time, and if my GC process is re-initiated would my wife be still eligible for filing H-4 EAD or NOT ( in a situation if old employer revokes I-140 )
A1. So far it appears to me and again we don’t have the details yet. The very least you will need is proof of marriage and birth certificate. I don’t think that is the normal requirement but I believe proof of relationship should be acquired and kept. Then the question what if the names on the birth certificate and passport are different.... we still don’t know lot about these issues. I would say an affidavit explaining the discrepancy and probably making efforts to remove the discrepancy whether you want to have the passport issued under the correct name or whether you want to have a Indian court give a declaratory judgment of some kind that the name X and Y are the same person. Something like that would be a good idea. But it is not going to stop you H-4 EAD application at least in my mind. I think even education certificates are irrelevant because the H-4 EAD is not given based upon what degrees you have, it is given based upon your relationship with the H-1 holder who is at a certain level of maturity in the green card process. I am not worried about the laminated original document. That doesn’t bother me.
A2. First of all USCIS just roughly follows the first in, first out rule. They are not always bound by that rule because there are so many variations within the processing times if it is given to a particular officer, which depends on what is their case load is and what if they have to take a couple of days off. It’s not always predictable that you will always be first in and first out.
A3. Under the regulations USCIS should adjudicate EADs within 90 days. But in case you don’t know they are finding it very difficult to keep to that time. I will be surprised if they are able to keep to the 90 days process, but if it is merely administrative process and there is not a whole lot of investigation involved then I don’t see why not but I really don’t know.
A4. The government has said as long as you have one I-140 that remains unrevoked they will give us the H-4 EAD. But if the I-140 is revoked then H-4 EAD will not be given.
Our software company has worked with Rajiv and his staff for 2 years on various visa applications (H1B, L1, EB2) and couldn't be more pleased. The entire staff is professional, reliable, knowledgeable, and friendly. Rajiv is never too busy to have a call to provide updates & recommendations, and even just to put employees at east during these most stressful times. I highly recommend the Law Office of Rajiv S. Khanna.