What is the basic criteria for extraordinary ability?
This morning, I was working on explaining to a client (whom I respect greatly), one of the foremost musicians from India, how EB1 (Extraordinary Ability) category applies to musicians and performers. As I was sending him the basic information on EB1 category, I thought I will share the general criteria with all of you. This information is for EA, generally and applies to all fields - not just music. See attached.
After you receive your conditional green card what is next?
Off hand, I can think of two types of conditional green cards: marriage-based and investment-based. In both instances, eventually you have to apply to get the condition removed.
Release Date
Effective Sept. 26, U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of Permanent Resident Cards (also known as Green Cards) to 24 months for lawful permanent residents who file Form I-90, Application to Replace Permanent Resident Card.
My uncle has been a US Permanent Resident since Apr 2021, and recently he got into trouble with Shoplifting Theft (Misdemeanor B). The prosecutor is ready to lower the punishment to Misdemeanor class C theft along with 6 months of unsupervised deferred probation (fine of 99$) with NO CONVICTION. Also, after 2 years, he will have the option for the case to be expunged from the records.
Question: Will this create a legal problem with his current immigration status (LPR), and also, will he face issues after 4-5 years when he is ready to apply for his US citizenship considering the case has been expunged from the records?
These cases do not worry me much as it looks like a minor offense. Although I recommend you speak with a lawyer who practices deportation defense in the state in which the crime occurred. They would know the local criminal statutes. Also remember expungement has no meaning under immigration law. Even if your record gets expunged and if there is ever a question as to your arrest you have to say yes, because the expungement under immigration law has no meaning.
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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.
AC21 Green Card Portability after 180 days of I-485 Pendency - Part 1
Recorded 27 July 2012
Hello, everyone. I want to talk today about AC21. There is a lot of mystery, a lot of mystique. People have been asking questions for a few years now, and I’m still not done answering all of the questions. So I thought I’d just record this for you and hopefully I’ll cover most of the issues that I remember. In case I am missing something, let me know. Of course, this is just the first part. I intend to do several parts on this AC21 issue. If you have any follow up questions, you are welcome to send us an email through the Contact Us form on www.immigration.com
What exactly is AC21?
AC21 is an abbreviation for a law called American Competitiveness in the Twenty-First Century Act. I think the law was enacted by Congress back in October 2000. So the law has been in effect for fully 12 years, and USCIS has still not given us regulations. It’s very important to have regulations. If you do not have regulations, we have only the bare bones of the law. In IT industry, you think of it as having just a high-level design. We do not have any user interface, we do not have any functionality program, we do not have the code, and we do not really know what the law will really look like in implementation. The last comprehensive interpretation of AC21 was back in May 2005 through something called the Yates Memorandum, given by William R. Yates, which basically answered a lot of questions, but there are still a lot left unanswered.
What is AC21’s effect on H-1?
Basically, this allows you to get H-1 extensions beyond six years; it allows you to change jobs while the H-1 transfer is pending. I’m not discussing this now. I want to focus on Green Card. I will address H-1 later.
AC21 effect on Green Card
Every EB-2, EB-3, and some EB-1 holders can change to a same or similar job as described in their Green Card with any employer anywhere in USA. You are not geographically restricted. If your green card was filed in Colorado, you can move to California or Washington, DC. What is required is the jobs be same or similar.
Your I-140 has been approved, and your I-485 has been pending for 180 days. How are the 180 days counted?
180 days are counted based upon the pendency of I-485, not necessarily after the I-140 has been approved. Let me explain. Let’s say I file your I-140 and I-485 today. After 150 days (five months), your I-140 gets approved, and now your I-485 has been pending 150 days. We only need 30 more days to reach to that 180 day count. In other words, we don’t have to start counting from the date the I-140 has actually been approved. We count based upon how many days the I-485 itself was pending. Once the I-485 is approved, then, by operation of law, we only count what has been remaining of 180 days. Once again, I file today, both the I-140 and I-485. After 150 days, I-140 gets approved. Now I have to wait only 30 more days.
What if I leave before I-140 is approved?
Mr. Yates made it quite clear that, as long as I-140 was approvable when filed, even if you left, it’s not going to affect the merits of your AC21 claim. Once again, if the I-140 was approvable when filed, even if you left, it’s not going to hurt the merits of your AC21 claim, but there is something to worry about.
Does the employer still have the intent to hire me back and I to rejoin?
In other words, what triggers AC21? It is not the approval of the I-140. What if my I-140 and I-485 were not filed together, as happens to a lot of people. Of course, if they were filed together, then remember the 150 days example I gave. Even if you left, the I-140 gets approved. We only have to wait those extra 30 days, and we are comfortable in knowing that we are covered by AC21. But what if my I-140 has been filed, but not my I-485? Then I have to do this analysis. Does the employer have the intention to hire back and I to rejoin them? If so, when my priority date becomes current, I can file for I-485 based upon the letter given by the employer for whom I used to work. If you leave before your I-140 is approved and before the I-485 is filed, you’ve got to have a way to file an I-485 through the employer who has sponsored you, who initially filed for you, who petitioned for you. That means there must be an intention to hire and rejoin.
What if I leave before 180 days are over, but the I-140 is approved?
Now the hypothetical is a little different. Remember the 150 day example. What if I leave on the 150th day, my I-140 is approved, but I am still 30 days short of the 180 days that’s needed for the I-485 to be pending? This hypothetical assumes that both the I-140 and I-485 are concurrently filed. If they were not concurrently filed, then of course the previous analysis--the intent analysis--if the employer has the intent to hire me back, then I can file an I-485. Remember, you can always carry the priority date forward. That’s what we’re talking about. Once the 1-140 is approved, the priority date can be carried forward. We’re talking about AC21. That’s a different law altogether.
If I leave on the 151st day, am I okay?
You are okay as long as USCIS does not start questioning you on the 151st day. Mr. Yates said this. If you have left before 180 days and if you do not have a RFE response due back asking you about your job before the 180 days, you are okay. If I got an RFE before I left and the RFE response is due before 180 days, then the chances are I cannot use the AC21. I can only carry forward my priority date. If you don’t get this, join me in a free community conference call, and I’ll run over your scenario step-by-step.
What if I leave before 180 days are over, but the I-140 is approved, I-485 is pending, and I left during the 151st day? As long as an RFE response is not due before the 180 days, you are okay. It’s fairly safe to assume that you are going to be fine in any of these scenarios where you’ve left before the 180 days are over, because, typically, the RFE itself gives you a few weeks to respond and, by that time, if you’ve thought it over, you can respond with a new job offer.
What if I’ve left, but I don’t have a job for some time? Let’s say you left on the 150th day. Your I-485 pending and I-140 approved, or both are pending, what if you do not have a job for some time? Same analysis applies as long as an RFE response is not due before the 180 days are over. If it’s due before the 180 days are over, you could have some problem. But, if it is not due, you should be all right. If you do not have a job for some time, that’s okay, too.
May I port from a future job?
This is a very interesting analysis. The Yates Memorandum clearly says yes. So I am working for employer A on a H-1, and employer B has filed for my green card as a future job or, maybe even if I used to work with employer B, then I left them, and they continued by green card. It becomes a future job, then I am not working on that job. You can actually file an I-140 and I-485 for a future job and still do an AC21 to any job. You actually never even have to join the future job as long as your intentions were clean when you filed the I-485. So yes, you can port from a future job, and you can even port without ever joining that employer.
May I port to my own company or business?
This is a question I’m asked quite a lot. The answer is yes. It is not forbidden. Why the double negative? I’ll tell you what I’m worried about. When somebody ports to his or her own company or business, one of the most important things is, remember I talked about jobs must be same or similar? This is where the problem occurs. Let’s say your title was Biochemist or IT Engineer or Software Engineer or Systems Administrator. When you start your company, you kind of become the CEO or Manager. That’s not acceptable. That could cause the problem. But what if you have a company your wife is managing, and you’re just an employee? That’s okay. That can be done. So when you port to your company or business, make sure you discuss this in detail with your lawyers. Make sure you understand what you’re allowed to do and what you’re not allowed to do.
The same or similar analysis is very confusing. We don’t have clear understanding. The closest you are to the jobs being the same, the better off you are.
What do I mean by the same job?
What if I was a Java Developer in one job and a .Net Developer in another job? I think that’s okay. This is my interpretation, because you’re still a developer. Nowhere does the law say you must have the same technologies covering both jobs. In my view, you are okay even with different technologies. I’ve never had this view supported by the government, so consider this my guess, something I would be comfortable arguing in court if I have to.
What is required to do an AC21, and what does it involve?
There is no law on what you are required to do. If you do not inform the government, you are not breaking any law. But in most cases, it is a smart idea to inform the government. Why? Because if you are subject to AC21, you ported over, and then the old employer revokes the I-140, for somebody who has successfully ported, that does not have any effect on them. The old employer can revoke the I-140. You are still entitled to your AC21 benefits. However, I have seen cases when an old employer revoked the I-140. Instead of sending the usual RFE, USCIS sends a Notice of Intent to Revoke the I-485, and if you do not get it in timely manner, sometimes you could have an issue. Then you have to file a Motion to Reopen. It becomes messier. You might not have work authorization, because your I-485 has been revoked. That’s why, further down, I am going to advise you to keep your H-1 active in most of these cases. Even though the chances of something going wrong are extremely small, they do exist, and I like to cover every possible bad scenario that I possibly can. What you have to do is have your lawyers write a letter to the government saying that you are using AC21 and porting over to same or similar job.
May I transfer more than once using AC21?
Yes, you can do 20,000 change of employers. AC21 does not say you can do it only once.
Should I keep my H-1 active?
I just spoke about that. I think you should as far as humanly possible. If, for whatever reason, you cannot, it’s okay. You’re still reasonably safe as long as you keep track of your ****, but, where possible, keep your H-1 active. It’s so much better for you.
What are the dangers in using AC21?
One thing that has always bothered me is, if for some reason your I-485 is denied, for example, you are out of status and not even knowing you are out of status and your I-485 gets denied, you lose your AC21. This is something I’ve seen come up. An employee was placed in California where the LCA was approved for Colorado. That’s a violation of the H-1 laws. Most employers don’t know that. Unfortunately, some of my colleagues I’ve seen poorly advise that you can just file a new LC. That’s not true. H-1 amendments are needed when the move is beyond normal commuting distance. Inadvertently, you have fallen out of status for more than 180 days. Now your I-485 is deniable. You did not know that. The next thing is you’re getting a denial of I-485, and you are losing your right to AC21. That’s one major danger that I see all the time. Other than that, everything is covered if you can keep you H-1 active and, if you cannot, I feel that your risks are minimal. We have filed hundreds, if not thousands, of AC21 cases. I have not had a single case run into any kind of problem.
Sometimes, you can be interviewed. Does your risk of being interviewed increase because you’ve filed an AC21?
I personally don’t think so. I don’t see any indication of that. But, certainly, I’ve heard people say that that’s what happens. I don’t feel that’s a major danger. I don’t think that happens that frequently, but keep that in mind as well.
Folks, I hope I was able to give you some useful information. I know it’s kind of confusing, but we’ll keep talking about it until things become clearer.
Thank you for listening. Good luck.
How does EB-1C portability work?
I also have a question about the EB1C portability of the priority date. Say, If I have I-140 approved under EB1C and have a particular priority date. For some reason, if I need to or want to change employers and I do not qualify for EB1C with other employers. My new employer can file I-140 under EB-2, or I can file EB-2 NIW myself. I have both options. The question is whether I can use the priority date of the earlier approved I-140 petition under EB1C to the new employer's EB-2 petition and file AOS.
Sure. EB-1/EB-2/EB-3 all of them can be ported.
If someone gets around 50 parking tickets in a year, how would it affect visa / GC / citizenship?
I think it has no effect. Parking tickets are simply non-moving violations.Either you parked in the wrong place or the meter ran out after you parked.However, there are two components to moving violations. There is recklessness which can become criminal and that could become a major issue by itself or many speeding tickets that are not criminal could lead to a conclusion that you are not a person of good moral character.
Release Date
New Features Provide State-of-the-Art Security
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today new designs to improve security of Permanent Resident Cards (also known as Green Cards) and Employment Authorization Documents (EADs). USCIS will begin issuing the redesigned cards on Jan. 30, 2023.
My concern is about the Applying for Citizenship for myself and spouse, and with our passport and GC expiring criteria.
My GC and my spouse’s GC have a expiration date of Sep-2023
My Indian Passport have expiration date of Jul-2024 and my spouse’s on Mar-2026
I am pretty much ready with all the documents (been working on it for some time) to start our citizenship application by myself, according to the U.S Naturalization website for my region (New Jersey) it shows the processing time as 16 months. And if I apply now, during the processing period my GC will expire.
Is it okay to apply for citizenship now and then around July start my renewal of GC? Are there a process to update GC info after a citizenship application is submitted and is in processing? Would any part of GC numbers change when I get renewed? Or would you suggest that I renew the GC first as soon as I can and then apply for citizenship? If I do this then I will have to renew my Indian Passport as well I think, if there is not enough time.
The situation has changed a couple of months back. Now the government says if you apply for naturalization even in the last month of your green card USCIS will send you a receipt that says your green card is extended for two years. With the receipt, you can work as well as travel.
Release Date
WASHINGTON—U.S. Citizenship and Immigration Services has issued guidance in the USCIS Policy Manual to update when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA).
Release Date
Lawful permanent residents may receive temporary evidence of their lawful permanent resident status by mail rather than physically visiting a field office to receive an Alien Documentation, Identification and Telecommunication (ADIT) stamp (also known as an I-551 stamp).
Lawful permanent residents are entitled to evidence of status and may require temporary evidence of their status in the form of an ADIT stamp if:
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I have a delayed birth registration certificate issued by municipal authority with place of birth: hospital name, city. My passport just got the city name as place of birth. Do I need to submit secondary evidence when I file I-485 because of delayed registration?
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.
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. 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 behavior. 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.
1. So my question is:
does this mean that their denial is not based on the Crime of Moral Turpitude, but I really didn't show strong ties? Or they just don't reject me explicitly with the real reason? 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?
2. Another question is:
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?
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.
Is it eligible for green card sponsorship if a job allows working remotely?
There is no requirement that you must be in the United States when your green card is filed. It can be filed while you are still outside the United States.
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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.
I received a Green card (GC) last year (Dec 2021). I travelled to India in January 2022 for vacation and have been staying here in India for last 4 months. While on vacation, I have been working for a US employer from India. This is the same employer who sponsored my GC. I am planning to go back to USA in June 2022. This will be the first time I will be travelling back to USA using my GC. Kindly see my questions below.
1) If I mention that I was in India for four months on vacation, would this answer cause any issue with the CBP officer at POE?
2)Is four months of vacation in my home country acceptable for a GC holder?
3) What typical questions could we face at the Port of Entry for someone who spent four months of vacation in their home country?
4) Is working for a US employer from India allowed for a GC holder?
5) Do I need to expect a secondary inspection for additional scrutiny by CBP officers due to my four-month vacation?
1. No, first of all, always be truthful.
2. If the period is less than six months, there should be no problem.
3. Typically, a green card holder who returns in less than six months is not subject to lengthy questions.
4. You can work from anywhere.
5. If it is less than six months, there is generally no secondary inspection.
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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.
Hi, My husband & I have been green card holders (Employment based thru my employer, prior Visa status L1 & L2) since August 2020. My husband recently lost his job, so I was hoping you could please clarify a few queries: • Is he eligible to apply for Unemployment benefits? • If yes, does this have any negative impact on our Citizenship/Naturalization process in the future? Truly appreciate your kind assistance. Thank you
Availing of unemployment benefits should have no impact on a green card holder's status or naturalization. Eligibility depends upon state law.
Does it pose a problem if we stay out of the USA for 8 months or more while having permanent residency and returning after that duration? If so, what can be done to remedy this?
The green card remains valid as long as you don't exceed the 12-month mark. Crossing this deadline leads to losing the green card and going through complicated procedures to retrieve it. If you stay outside the US for more than six months, you are subject to close examination by Customs and Border Protection at the airport. However, if your absence is less than six months, you can pass without being questioned extensively. The critical six-month mark should be taken seriously. If you stay outside for more than eight months, expect to be asked questions about the reason for your lengthy absence. Therefore, carrying evidence supporting your reason, such as selling your property or helping a family member, can be useful.
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.
We are thankful to Mr.Rajiv Khanna, Seema Sharma and the team that worked on our Green Card. This entire process they have been supported and gave best directions and suggestions, answered all of our questions. We would like to shout out special thanks to Seema for her help and support. Our experience working with them was very pleasant and positive. Thank you :).