I am working on H-1B. This week, I got my I-140 petition approved that was filed in EB2. I am Indian citizen born in India. My marriage is scheduled to happen in Jan, 2015. The girl is citizen of India and was born in Nepal. I have heard that after marriage, I would be eligible to file I-485 for both myself and my (then) wife, based on cross-chargeability rules. <br>
1: Is my eligibility to file I-485 (based on the birth country of wife) and its approval thereafter dependent on discretion of USCIS? If yes, does USCIS generally approve or deny such I-485 petitions filed on the basis of cross chargeability rules? <br>
2: Is there any reason due to which my wife and I would be denied from filing I-485 and there-after getting an approval of I-485 (leaving aside fraud matters)? <br>
3: My fiancée is yet to get her passport made in India. I found that my fiancée does not have her birth certificate from Nepal. Is a birth certificate the only way to prove location of birth? If she gets her birth certificate made now, Does the USCIS create issues about a birth certificate made so many years after birth? <br>
4: In my scenario (EB2 petition, primary applicant India born, wife Nepal born Indian citizen), How long (approximately) after filing I-485 would it take to get the green card?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://www.youtube.com/watch?v=ujMQ79pgzX8
FAQ Transcript
I have a question on the unpaid leaves when outside USA while on H-1. I am on H-1 and recently went to India for stamping which was completed without any problem. I had paid vacation of 2 weeks, which I had already used and stayed in India for a month which is not going to be paid. My employer is saying these will be unpaid leaves and won't be running paychecks for these leaves and is mentioning that this won't be a problem in future as this is legal. I want to take legal opinion from you regarding what the law says in the above situation. <p>
1. If I am out of US on unpaid leaves and won't get paid, will there be any issues on my H-1 status in future for transfer or GC? <br>
2. If due to unpaid leave, W2 is less than the LCA, will it be a problem? If yes, what documentation we can show to USCIS to clarify to them why it’s less?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://www.youtube.com/watch?v=ujMQ79pgzX8#t=1516
FAQ Transcript
If you are on H-1, sometimes people ask me, I want to maintain status even though I am getting laid off. Can I be on unpaid leave and does maintain status?
Does this impact EB-3 India wait times and also does this lift counting on family members/dependents for visa numbers /quota ?
Obama's Immigration Action plan could impact all waiting time for EB categories. We are not clear how far or how quickly. There is no indication that the method counting green cards will be changed to One per family, instead of one for each family member in an employment-based case. President has asked for recommendations for improvement within 120 days. We shall see.
I am on H-1B Visa, got my I-140 approved in EB-2 Category and waiting for the dates to get current. Based on Executive Action, shall I be given any EAD ? Or at least any other forms so that I can travel and need not go for Visa Stamping and all the additional paper work.
I have heard that there is a proposal to allow filing of I-485
Is this true ? - "If the ‘Schedule A’ application falls into the “EB-2” or Employment Based Second Preference category (the employer requires a Master’s degree in Physical Therapy or a Bachelor’s degree in Physical Therapy + 5 years of experience), then the Adjustment of Status application can be submitted simultaneously with the Form I-140".
Concurrent filing is possible ONLY if your priority date for EB-2 is current, and not backlogged.
For updates, see my blog page on Obama's Immigration Action.
Takeaway points for legal immigration from President Obama’s executive action:
1. USCIS is “about to” publish the final rule on H-4 work authorization. That will make it possible for certain spouses of H-1 holders to get work authorization.
2. Improving employment-based green card backlogs by:
a. Making visa issuance more efficient so no immigrant visas are wasted;
b. Providing for better AC21 rules and other ways to keep immigrant visas intact after a change of jobs. USCIS will clarify what constitutes “same or similar” job so that AC21 will not stop workers from getting promotions or even changing to related jobs within their field. USCIS must clear the path to career progression for green card applicants.
3. Expandingfurther the OPT time for STEM students, but creating tighter control on which universities/schools/degrees are eligible and ensure local workers are protected (Implement some sort of a “mini PERM?”).
4. Creating opportunities for foreign “inventors, researchers and founders of start-up” companies to come to the USA through an existing program called “National Interest Waiver.” Unfortunately for India, this is an EB-2 category program requiring several years of wait. But the following parole program will help:
a. Creating a parole (which is usually a temporary, but very quick measure and could eventually lead to a green card) program so that on a case-by-case bases, “inventors, researchers and founders of start-up” companies can be brought quickly into the USA where:
i.They have raised financing in the USA; OR
ii.Otherwise hold the promise of innovation and job creation through development of new technologies OR cutting edge research
5. Creating guidelines for exceptionally qualified or advanced degreed individuals to come to the USA through an existing program called “National Interest Waiver.” As noted, unfortunately for India, this is an EB-2 category program requiring several years of wait. But the parole option above could be helpful.
6. Providing clear guidance on L-1B program as to who can qualify.
I am a US citizen. I have applied green card for my parents. Because of certain defects in the papers, USCIS has asked us to go for DNA testing. My parents are in India, I am in US. Can DNA testing be done like this?
This issue has been coming up more frequently in family-based immigration petitions than it ever did before.
I am currently waiting for my final visa interview since my priority date became current just last July. The target date of the interview may be between December to May (6-9 months from priority became current, right?) As of the moment, my civil status is single but I'm planning to get married soon but the schedule might be only after my final visa interview. Will I still be able to include my husband in the petition? If so, what should be done and what will be the range of months for the processing time?
It is difficult for me to plan your course, but the law is relatively simple. If you get married BEFORE green card approval, your spouse is entitled to "follow to join." That process tends to be quicker than if you get married after you get the green card approval.
My H1B petition got approved through my existing employer and became effective 10/01/14 (I was on F1 OPT before). Where am I eligible to go to for doing first time H1B stamping, other than my home country (Russia) – can it be done in Canada, Mexico, or other countries? I have Masters from an American university, and over a year of working experience in the US. Also I’ve heard that starting June Canada has suspended doing first time H1B stamping, can you please provide any clarification, and also could you please advise what all options are available to me?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://www.youtube.com/watch?v=xp4B1_qhvtM&feature=player_detailpage&l…
https://www.youtube.com/watch?feature=player_embedded&v=ujMQ79pgzX8#t=1665
Currently my I-140 is approved and now for the I-485 I need to present date of birth certificate. Problem is that DOB on certificate is correct and on all other documents including school, college, and passport and in all US records it is in correct. It started with wrong DOB in 10th certificate which was used in college, passport and finally all US documents. Now I went through all the channels and found the ways to change in passport and in all US documents. Question is what legal problems I should be prepared for and how it impacts my US records once it is changed. I am in US for last 7 years. I need to take decision on this as if it is worth doing it or just go back to India and may be forget about GC for this time. Really appreciate you taking out time for this kind of questions.
Really appreciate you taking out time for this kind of questions.
FAQ: Discrepancies In Date Of Birth Information
FAQ Transcript
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My wife came to US on H-4 initially and applied for H-1B. She has got RFE asking for more project details. She got one job offer meanwhile and her employer replied for RFE also filed separate Amendment petition with new job offer details. We have got approval for H-1B without I-94 details. Shall we expect I-94 once the Amendment process is approved?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2384
FAQ Transcript
This FAQ is on “filing amendment for pending H-1B petitions”.
I am an Indian studying in New Zealand. I have finished my first semester. During my 3 month semester break, from New Zealand I would like to apply for a B-2 visa(visit for pleasure) to the US to attend my best friends wedding as I am her bridesmaid. My query about the funds that I need to show <br>
1. How much do I have to show <br>
2. How old should the funds be
For visitors visa, there is no requirement of possessing funds. The consulates can require, if they so choose, that you demonstrate your ability to support yourself during the visit, but there is no hard and fast rule on this. Your most likely hurdle will be the need to prove that you will come back and not stay in the US illegally.
Currently I am on H-1B and my wife in H-4, my company had recently filed for Green Card. It has been 6 months since the petition has been filed. My wife has about 5 years of work experience back in India. She is interested to work here now. What are the possibilities of her getting a job here in US. As my GC is in progress, can she start looking for a job once my I-140 is approved?
Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.
Iam a Indian National Married to A US PR holder She has cleared her N400 Interview .I have been last year Denied Admission (deported) from Airport after me being initially on Student (F-1) Visa & then on H1B (61/2 years previously) with Citations : 212(a) (7)(A) (i)(I) & 235(b) (1) .
The questions I have for you are :
Q) Do I have any 3 yr, 5 Yr or 10 yr ban on my entrance to USA ?
Q) Do I need any waiver like I-212 or anything else for my future entry to USA ?
My I-130 had been approved and I believe I can upgrade my I-130 by my Spouse sending her Naturalization Certificate & her passport copy to NVC(Kentucky)
Q) Do you think I might have difficulties while facing this changed IR-1 Category Visa Interview and any other problems at the Port of Entry ?
Q) What timeframe does NVC take to notify the Consulate & Can it be Hyderabad, India ? & Overall how much time will it take for me to get the Visa or the Conditional Green Card
In 2008 while I was working in gas station I was caught selling alcohol to minor. I was in student visa at that time and was getting paid in cash. This was unauthorized work. I was not arrested but went to the court and the final verdict of case came to attempt to sell alcohol to minor which falls into misdemeanor C. Right now I am in H-1B and I have filed my green card through my employment. My Labor and I-140 is approved and waiting for my PD date to be current to apply I-485. So what are my chances to get I-485 approved having that case in my past? I have got mixed answers from the attorneys I have contacted so far. Some said I should be fine and some said if USCIS ask about my work authorization at that time then my petition will be denied due to violating my F-1 status. Please let me know what you think. Will USCIS go further to ask that since you are selling alcohol on F-1, then you must have violated immigration law by being employed without work authorization?
If you have criminal conviction, lot of times you can have criminal convictions for minor problems for example you got into altercation with somebody or some kind of public nuisance conviction, in this case selling alcohol to minor did not check the ID. So the question is how does that impact my immigration status?
First of all, there are 2 categories of crimes misdemeanors and felonies. Felonies are anything which are punishable don't have to receive that punishment but punishable by more than a year. They are more serious crime and other is misdemeanor is year or less than a year.
So we look at the crime is misdemeanor or it is a felony, then we look whether there is moral turpitude or not. Moral turpitude is the term for dishonesty, reckless, disregard or safety of other people or attack on other people. So these are typically they call them offenses of moral turpitude. So if there is moral turpitude and there is felony chances are, you got the problem. But if there is only one misdemeanor even if it’s turpitude crime it is exempted by something called Petty offense exception. Petty offense exception says if you have only one misdemeanor and the sentence actually imposed upon you was less than 6 months, whether you actually served it or not. Even if it’s a suspended sentence it is considered to be sentence than we leave you alone, give you H-1, F-1 or Green card so petty offense exception. So once again we look at the crime if it is a crime of moral turpitude or not, if it’s not chances are you are going to be OK. If it’s a Felony of moral turpitude you have a problem. If it is only one crime misdemeanor you don't have problem, very generic overview.
Normally when I look into these cases, first thing I do is try to see if we get away from conviction. So if we get the case settled with the government, plea bargain entered without the conviction.
What is conviction under Immigration law?
A conviction under immigration law is where you admit having committed the offense. If you have to admit the offense then it is conviction, no matter what kind of deal we make. First of all we try to get away from conviction, if there is no conviction there is no crime. If we can do that then we are safe. If we are not able to do so we bargain for misdemeanor. That’s the way typically we handle these cases. . Make sure it is misdemeanor under the state law. You say that it is misdemeanor C. I don't know what that means. State law has to be checked. But it looks that you are going to be OK.