1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to USCIS?
2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC?
3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer?
A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.
A2) You can behave like you would in any other permanent job - take vacations, etc.
A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36
1) I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work?
2) My parents' I-130 application is currently pending. They are currently living in their home country, India. Can they visit me during the pendency of the green card application?
3) Is it better to apply for adjustment of status or consular processing for the last step of their green card?
4) Updated FAQ - My parent came to US with B1 visa and they are still here. But the visa were expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?
A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.
There is just one issue. It is INAPPROPRIATE (may be even illegal) for a person to enter USA on a tourist or other similar visa if they have the intent to apply for a green card. BUT, if they enter USA without that intent, and after a few days of entry change their mind, that is perfectly appropriate and legal.
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.
In the E visa context, this is what the govt says:
Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)
Please find attached Details of USCIS National Stakeholder Meeting which was held on July 27, 2009.
U.S. Citizenship and Immigration Services (USCIS) Application Support Center (ASC) stand-alone sites will move to a Monday through Friday schedule beginning Nov. 2, 2009. Stand-alone ASCs are those which are not co-located with other federal offices and which previously operated Tuesday through Saturday. All ASCs, both stand-alone and co-located sites, will continue to be open from 8:00 am to 4:00 pm.
1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable?
2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD?
3. How long is AP processing taking these days?
4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing?
5. Please list out all the documents that I should carry while traveling?
1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .
2. No. See answer above.
3. It is impossible to predict times. Plan for a six-month turnaround.
4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.
5. Advance Parole and Passport.
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.
H-1 extension beyond six years can be obtained under two circumstances:
First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:
- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business.
1. How does it effect my H1B visa and GC application (filed I-485 - pending)?
2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment?
3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?
1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.
2. An amendment should be filed, though it is debatable if it is required.
3. In my view, AC21 port is easier.
I am UK citizen and had withdrawn a bank loan when I was in UK, which I did not pay back. I am on bad credit in UK.
Currently I am working in USA for more than 2 years and my current employer in USA is ready to sponsor Green Card for me. My current USA employer does not know about my bad credit in UK.
My Question is: During background and security check for green card process, will this loan effect my GC? Does the GC background and security check process includes financial unpaid loans/bad credits in other countries as well?
Watch the Video on this FAQ: Does bad credit or private loans/litigation affect immigration?
Video Transcript:
Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
I just wanted to thank you Rajiv and his team, esp Prerna, Rita and Pramita for their wonderful work and guidance throughout my greencard process.
Discussing allegations of fraud and consequences when a short-term visa holder tries to convert to green card or another long-term visa from within the US.
If the Child is born in India and we have the GC by that time, is there any way the child can travel to US?
Your child may accompany you or travel with you to the U.S if the following conditions are met:
a) the child has a separate passport;
b) has a birth certificate from the corporation, municipality or a registrar of births and deaths (please note hospital records are not adequate)
c) the child accompanies the immigrant mother or father upon her or his return to the U.S following the birth of the child
d) the child is under the age of two years
e) the immigrant mother or father has a valid Form I-551 or I-151, alien registration receipt card (in short called
I have worked with Ms. Diane Lombardo and Mr. Khanna from past several years for my O-1 visa, J1 Waiver and GC. Diane and Mr. Khanna are always very accommodating and helpful. They have guided me through the entire process diligently and professionally. I have very truly recommend them to my friends without any second thoughts.
I recently started my GC application with Mr. Khanna and his team. What I found most remarkable was the timely responsiveness and expertise of Mr. Khanna and his team. They were quickly able to address our issues and provide valuable insights based on their vast experience in the immigration area. Thanks once again for all your efforts. Truly appreciate it.
The current prediction that the priority dates for employment based green card applications are likely to retrogress again has brought a lot of speculation and questions from our clients and our community. Let me clarify some of the questions and concerns.
Q 1. What happens if my priority date (“PD”) retrogresses while my I-485 is still pending?
Q 2. Can we expedite the adjudication of our pending I-485 (or any application, for that matter)?
A 1. There are two possibilities. First, the case is not yet ripe for adjudication (for instance, it has not been assigned to an officer or the security clearances are not yet submitted or obtained), USCIS can shelf the case and not process it any longer untile the PD becomes current again. Second, USCIS can “preadjudicate” that case. That means the case is adjudicated and then shelved for PD to become current again. I do not believe there exists a mechanism currently to determine what USCIS will do with an individual case.
I am currently on H1-B and my I-140 has been approved. Because of the delay in I-485 Processing, I was thinking of doing my green card through the EB-5 Category with a $500,000.00 Investment through a Regional Center or a New Commercial Enterprise.
I had a few questions regarding the following:
For EB-5 through Regional Center
1. What is the time frame for Investing the money? Does it vary per Project?
2. What is the general Return of Investment on these Projects? Does it vary per Project?
3. Can we withdraw the Investment earlier if the Project is a failure?
4. How much involvement is necessary/allowed in the management of the Project?
5. When can I start withdrawing the money after I get my Green Card?
6. Is there any agency/firm that evaluates the Regional Centers?
For EB-5 Immigrant Investor through New Commercial Enterprise
7. Do the 10 people have to employed immediately or over a period of 2 years?
8. If I employ 10 people and put in 500,000.00 in a start up business in a rural area or highly unemployed area towards the income for the employees, is the money counted towards investment?
As always, Mr.Khanna is very helpful and to the point. Very satisfied with his way of handling issues.
Mr. Khanna was a great help in me understanding the intricacies of the immigration law, with a legal situtation I had. Based on his guidance I got my Green Card a while ago and was able to plan on handling my legal situation. Thanks Mr. Khanna
Thank you Rajiv for the extra ordinary service to the immigration community and always ready to help. Rajiv's advice and immigrationportal.com have been super valuable at times when things are confusing with ever changing and arcane rules. I can personally relate to the inspiring energy and awareness Rajiv brought among wannabe permanent residents, when huge backlogs and processing times started to impact folks personally, almost a decade ago. Thank you. regards, vinod
Most Green Cards are obtained through employment, investment, a family member’s petition, the Diversity Visa program, and a refugee/political asylum application. However, there are other ways to get a Green Card. These Green Cards are limited to individuals meeting particular qualifications and/or applying during certain time frames.
Individuals in the following categories can apply for Green Cards:
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.
It is always pleasure talking to Mr. Khanna about immigration related issues, his expertise in the immigration field are acknowledge by all the attorneys. I once had a talk over the phone with attorney who was based at west coast, during the discussion with the attorney, I mentioned that we are east coast based so he instantly mentioned Mr. Khanna's name and he praised about him as an attorney. I was really touched by this that we work with such a great attorney.
Hi Rajiv, I want to take this moment and offer you my utmost gratitude and thankfulness for your support and cooperation in my Green Card process. My case was little complicated as I had another I-485 with another lawyer with different job descriptions but same company. But with your expertise there was no RFE . This has been possible by the perseverance and dedication that was offered by your office. And I want to specially thank Amrita who has been exceptionally helpful to me for all these years. I must have contacted her zillion times for questions and concerns that never left me alone. But she always maintained her professional outlook and gave me the best guidance. This entire immigration process was only possible through your support. I will highly recommend your law firm for all immigration matters. Its the best indeed. Regards, Ashish Agrawal