USCIS Forms Update Notice
USCIS recently updated the following form(s):
Form I-131A, Application for Travel Document (Carrier Documentation)
USCIS recently updated the following form(s):
Form I-131A, Application for Travel Document (Carrier Documentation)
Published in the December 2022 issue of ALI CLE’s The Practical Lawyer
This article is part of the continuing series of interviews between Rajiv S. Khanna, principal of The Law Offices of Rajiv S. Khanna, PC, (www.Immigration.Com), 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.
I am currently on an H-1B visa and working remotely. My h1b petition has two addresses, home (VA) and office (PA). The office headquarters is in NJ.
My employer filled PWD in Mar2022 which got approved in Oct 2022. When I reached out to them for the next step, they mentioned that there were some issues with the previously filled PWD, so they had to refiled my PWD in Jul2022.
Based on my discussion, I came to know that they did not mention the main headquarters address, which is in NJ, and put the address of the PA office, which is in my h1b petition. They said because I am a remote employee, they are supposed to put the address of the headquarters.
Q1: Are we supposed to put the headquarters address when we file GC for a remote job?
Q2: Are we supposed to put the headquarters address when we file h1b for the remote job? Or is any office ok?
In my view if this job is remote it should be advertised nationally and you should put either the corporate headquarters or the principal place of business. You should not put an office where you are not going to work as this could be problematic. Make sure you have a conversation with your lawyers.
My last H-1B was recently revoked four months after receiving a Green Card and the company attorney says automatic revocation is a standard practice by USCIS not always followed. But most people I know did not have their H-1B revoked after Green card approval so I am a bit concerned why this happened to my case only.
There is absolutely no need to be concerned. This is by operation of law. But, just to keep matters orderly it is a good policy to send in a revocation notice and that should not be of any concern to you.
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
My spouse is a dentist from India and converted to F-1 from H-4 on Sep 29, 2022. She pursued a few courses for MBA (non-stem) between March 2022 and Jun 2022. Now she is completing the remaining courses of her MBA on F-1 for the next 12 months.
My queries are-
1. Does she need to be on F-1 status for a min 365 days to be eligible for OPT?
2. If we ever need to change to H-4 status again (stamped till Aug 2024), can she travel to India and come back without F-1 stamping? or a COS application from F-1 to H-4 ( that may take 6 months) could be a better option for EAD application.
1. The 365 days requirement is not required. What you need is one academic year or two if there is a need to change to H-4.
2. If she has an H-4 stamping already there is no need to go to India. All she has to do is drive to Canada or Mexico and return showing her H-4 visa stamping.
Note: To be eligible to apply for OPT, you must:
I filed my I140 with 180 days after Perm is approved. But after that, the I140 is denied and my Perm is expired. Can I fresh file I140 again the my expired Perm. Thank you.
There may be a typo in your question. If the first I-140 was filed within 180 days of the PERM validity period, the second or subsequent I-140 can be filed outside the 180 days. No problem.
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
We are looking to apply for an E2 visa being Canadian Citizens born in India. Seeking your advice on a couple of questions- we have pending F3 status immigration with a 2011 priority date, can the primary applicant on the E2 application be my wife, who is also the primary applicant on F3 immigration? Would you recommend going through consular processing or an adjustment of status for my wife, considering we have a pending immigration file?
In my opinion that can be done because the E-2 visa is kind of a dual intent visa. It allows you to have a green card pending as long as you have no intention to violate U.S immigration laws and you have the intention to go back to your home country if required.
1) How long does one have to wait in total if the company applied for PERM (EB2 - MS CS degree), and THEN Concurrently applied for I-140 (premium) and I-485 and the country of birth is UAE?
2) Can the above be done on an F-1 (OPT + STEM OPT) Visa instead of an H-1B? And any potential issues for F-1 in this case?
3) In this scenario, how would it work if the person also submits NIW in parallel with PERM?
My status changed from F-1 to H-1B status this year on Oct 01, 2022. Since I am now on an H-1B visa, I am planning to buy a house soon, before the end of this year, and my plan is also to rent out other rooms and maybe Airbnb in the future. I researched this is considered passive income and is legal but:
1. I was wondering if I can do the same by opening an LLC. Will this still be considered passive income?
2. Another question, since my status changed from F-1 to H-1 this year, for 2022 taxes, should I still fill out the 1040 NR form or not?
I really cannot tell you that there is a clear guidance from the USCIS on this issue. I would avoid this unless you are the adventurous kind. Just remember one thing: the fact that you were engaged in unauthorized or questionable employment or income generation is less damaging to you than lying about it.
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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.
Number 83
Volume X
Washington, D.C
A. STATUTORY NUMBERS FOR PREFERENCE IMMIGRANT VISAS
This bulletin summarizes the availability of immigrant numbers during November for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.
Discussion Topics:
USCIS recently updated the following form(s):
Form I-907, Request for Premium Processing Service
11/03/2022 09:50 AM EDT
Release Date
USCIS is providing additional guidance on the interpretation of changes to the EB-5 program in the Immigration and Nationality Act (INA) made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how USCIS treats investors who are associated with a terminated regional center.
U.S. Citizenship and Immigration Services (USCIS) is issuing new instructions for asylum applications submitted by individuals whose removal proceedings were dismissed or terminated by the Executive Office for Immigration Review (EOIR).
Release Date
U.S. Citizenship and Immigration Services has launched a new Enterprise Change of Address (E-COA) self-service tool to allow customers with pending applications, petitions, or requests to update their address with USCIS more easily. E-COA will significantly improve the speed and efficiency of the process for USCIS customers to update their address with USCIS.
Processing Queue | Priority Date |
---|---|
Analyst Review | September 2022 |
Audit Review | July 2022 |
Reconsideration Request to the CO | August 2022 |
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Release Date
USCIS seeks to update regulations with proposed rulemaking to improve program efficiency and integrity