Discussion Topics, Thursday, 3 November 2016:
FAQ: Impact on H-1 if converting to H-4 EAD; FAQ: TN work for multiple employers; Legal name change process in the USA.
Other: I-751 - removal proceedings NTA; Premium H-1 extension while H-1 amendment is pending; TN working concurrently on two jobs; TN applying for H-1, quota exemption; Impact on green card, I-140 if changing employers; Date of birth errors; F-1 reinstatement and H-1 pending at the same time; Change of status to TN; CSPA for consular processing; Priority date transfer; EB-2 PERM filing; L-1 stock ownership; Receiving bonus checks from end clients while working through H-1 employer; Refiling PERM if job has changed; Going to school if a green card is pending, etc.
Topics for Discussion, Thursday, 29 October 2015:
FAQ: Withdrawing one pending petition (H-4) when another is (F-1) approved; Writ of Mandamus against delay; Investment property while on H-1 (Buying and renting out a house); Starting my own company while on H-1; Priority date loss upon revocation of I-140; Consequences of getting laid off on H-1; etc.
Other: TN/TD Visa; I-14- approved, company acquired; Job termination AC21; Cross chargeability evidence (Iraq); Applying for H-1 from OPT and travel; H-1 transfer while an extension is pending,I-140 revocation and priority date; Minor son on tourist visa, parent on green card; PERM denial and probability of success; Naturalization delay; etc.
Topics Discussed, Thursday, 17 December 2015:
FAQ: Can TN work on 1099 as independent contractor; Difference between I-140 withdrawn and revoked;
Other: H-1 quota exemption; H-1B denial; H-1B how to file Form DS-160; I-140 revoked, refiling; H-1 L-1 221(g); I-130 processing; I-485 approval while COS pending; I-90 to renew green card; Misrepresentation in visa/ESTA; Contract for B-1/B-2 visa for domestic help from foreign country; Getting H-1 extension I-140 revoked, refiled; DV lottery (NOT my area of expertise); H-1 change of location; Does H-4 extension also extend H-4 visa stamp automatically? I-140 recapture or port priority date; Travelling while STEM extension pending.
I am Canadian citizen and got job offer in USA and going to work on TN visa. They are going to employ me as an independent contractor and are going pay using 1099. Can TN workers work as an independent contractor? Is this something valid and can I accept this one?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://youtu.be/Gl2WiBEALtk?t=68
FAQ Transcript:
Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation?
Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.
Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.
FAQ: Simultaneous filing of H-1 amendment and extension, Green card through a future job, H-1 employer not paying, TN applying for green card.
Other Questions: Green card for relocated employee, H-1 time recapture and extension, Naturalization, L-1A and EB-1C, H-1B amendments, PERM and mesan tested benefits.
What are the requirements to get a visa and green card as an international entrepreneur? Is the start-up visa effective?
Watch the Video on this FAQ: Current immigration/visa options for entrepreneurs
Video Transcript
A few options for Entrepreneurial Visas:
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.
Discussion Topics
FAQ: When does one become H-1B cap exempt? || Filing EB-1C, International Managers or Executives green card || Erroneously given longer duration on H-1B than eligible || Porting green card to a self owned company under AC21 portability || AC21 green card portability for a lateral move from developer to analyst || Revocation of H-4 EAD rules || H-1B RFE for specialty occupation || TN applying for green card ||
Other: I-94 through new company H-1B || Issues related to H-1B transfer, not joining an employer, etc. || Changing for H-1B to H-4 EAD and back to H-1B || Denial of I-751 to remove conditional status’; NTA issued || Green card AOS/I-485 interviews for employment based applicants || Background checks for visa stamping || I-824 processing times for obtaining duplicate approval notice || Refund of premium processing fee || Getting F-1 visa from a consulate while family-based green card is pending || Effect on green card application of change in job duties/salary|| Traveling after green card approval, etc.
U.S. Citizenship and Immigration Services (USCIS) announced today that it is clarifying policy guidance (PDF, 71 KB) on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist.
I really appreciate Mr. Rajiv, Kalpana, and their team for their work. They handled my case with utmost care and very professionally and did regular follow up with USCIS for the case status. They were always there to answer my questions and clarified them with almost details. I would highly recommend them if you have any immigration issues.
My husband was recently laid off after submitting an I-130. He is a Canadian citizen on a TN visa. He is still living in the US, all though his TN requires him to go back to Canada if he is not employed. The I-130 was approved, and now USCIS would like the I-485 change of status. This requires him to state his employment. Since he is not employed should we notify USCIS that he is moving back to Canada? Or should he apply for an EAD along with the I-485? What is the best approach?
Do not be alarmed. If you are a US citizen, there should be no issues.
Mr. Khanna and his staff is fabulous and extremely accountable! I recently had one on one conference call with Mr. Khanna and his assistant Rena and I was so much impressed with Mr. Khanna professonalism and knowledge. If I have to recommend any lawyer in future to any person; Mr. Khanna and his staff will be my first choice. God Bless Mr. Khanna and Team! Muhammed Nadeem Ibrahim
I am Canadian citizen & currently working on TN visa. My spouse is on J1 visa. I want to switch to J2 and get EAD. After couple of years he will apply for waiver and will move to H1. I believe I will be switched to H2 automatically as his dependant and my EAD will be void. Will that be possible at that time that I can switch back to my TN status?
You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).
I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?
You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.
I am a pharmacy graduate from India and a Canadian national. I passed my FPGEE Examination and hold a Intern Pharmacist License from Michigan Board of Pharmacy. I have been twice denied TN Visa saying I don't have Pharmacist License from US or Canada. I have been advised by the officer to apply for H1B visa. Recently, I read on State Department Website that License is not a prerequisite for YN visa. But my TN visa request was refused.
NAFTA clearly implies that you do not need a license (if you work under a licensed pharmacist).
Pharmacist—baccalaureate degree, licenciatura degree, or state/provincial license.
I am on TN visa for the more than a year. The company wants to give me some stock option (10-15%). Is that ok to hold stocks of the company you are working for on TN visa, or will it create problem when I apply for renewal of my TN visa. Can I apply for GC on TN visa?
I see no issue with holding stock, but that will be a problem for PERM-based green card. Also, processing green card under TN can be problematic.
My wife is on TN (expiry date : Oct/2019) and my two kids are on her TN as TD visa holders (expiry date : Oct/2019).
I am on TN Visa (expiry date : Apr/2019) and my perm just got approved and am in the process of simultaneously activating my earlier inactivated H1B visa and filing the I-140 with the hope after few months down I will be with an approved I-140 and H1B.
My wife wants to stay on TN (kids on TD) as long as possible because the employer doesn't want to sponsor H1B and moving to H4 EAD doesn't look like a smart option now due to uncertainty surrounding H4-EAD's.
Watch the Video on this FAQ: TN applying for green card
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 can only recommend working with Rajiv's law offices. Rajiv himself and his teammates (Kalpana in our case) have been professional, efficient, smart and reliable.
We started to work with Rajiv to apply for a cap H1B in March 2016. Our file was excellent and we have been selected. Our petition, to our and Rajiv's immense surprise, has been denied without any relevant arguments from the immigration agent. Rajiv gave us precious advices, he was confident that we would win with an appeal. Rajiv built our appeal file, and later our RFE answer. We contacted Rajiv and Kalpana many times in the process; they always came back to us promptly and proposed call appointments in the next 2-4 business days. They were very well organized and precise in their answers. Our appeal has been sustained.
I was finally able to get the H1B visa. I know Rajiv and Kalpana are a big part of our success. I am very grateful for their work.
We went to US Consulate, Ottawa and got my wife's TD visa stamped in her passport.
Substantial transcription:
7th July 2012 at 05:16 PM
9.59 Minutes
What do we do when our visa gets denied under section 214(b) of the Immigration and Nationality Act? Basically, this means that if the consulate doesn’t believe you are going to come back, they deny the visa, saying that you have an immigrant intent which you have not been able to rebut. So the idea is whenever somebody goes for a visa stamping, they actually are presumed to have immigrant intent unless they prove otherwise. Of all the visas A, B, C, D, E, F, G, H all the way to V, some visas are immune to this problem.
What are the visas that are immune?
H-1 as well as H-4, L-1 as well as L-2, and O-1 and O-1 derivative visas are immune by law almost. H and L are clearly immune by law and O by implication. With these visas, if you have a green card going, the consulate is not going to deny your visa for that reason.
On the other hand, there are notorious visas that are very susceptible to this problem:
B-1, B-2, F-1 as well as F-2 (which are for students), and J-1 as well as J-2 are susceptible. A lot of physicians on J-1’s have had a visa denial on 214(b).
TN visa holders strictly not going for visa stamping but can be stopped at the border if their green card has been filed. So bear in mind that when TN holders apply for a green card, they should be careful about this particular factor.
The biggest problem with 214(b) is it is extremely difficult to fight it. I have recently taken a case in which an F visa was denied on 214(b), and I think we have a fighting chance because the visa applicant has come to the U.S. many times and she has left within her time permitted. So she’s been a frequent traveler on a B visa. Her F visa denial is extremely unjustified, in my opinion.
Let me just very quickly go through the visa alphabets.
A visa (diplomats) will have no problem. They have no issues of a green card being denied.
B visa will have a problem.
C, D, and E visas will usually not have a problem.
The only thing you have to establish for E-3, especially for Australians (E-3 is kind of equivalent of H-1), is that you do have an intention to come back but not to the same degree. In other words, if you have a home in Australia, the degree of proof is not very high so it is very easy to meet that degree of proof.
G visa is ok.
H visa is ok.
By the way, H-2B visas can have a major problem with immigrant intent. These are people who are coming to U.S. for to perform skilled labor.
I, which is international journalists/media representatives, may or may not be ok.
J visa will definitely be a problem.
K -1 and K-3 are no problem because they are fiancés or spouses of U.S. citizens and are obviously meant to go into green card.
L visa is no problem.
M, which is folks who are doing vocational training, can have this problem.
P visa (performers, athletes, etc.) can have a problem but usually won’t.
Q visa (exchange visitors) can have a problem.
R visa usually won’t.
S, T, and U visas won’t usually have a problem because they are done within the USA and are usually either victims of crime or people who are assisting in criminal investigations.
So what do you do if you get a 214(b) denial?
Normally there isn’t much we can do but, if you have been to USA before or else there is something unique in your case, we can ask the consulate to reconsider and if they are not willing and able, then we can ask the visa office in Washington, D.C. to intervene. You can also contact your family or employer in the U.S. to contact the local Congressmen to seek their intervention. This typically is not helpful but you can try. If anybody from the bar or a lawyer tells you he or she can fix it, be mindful because they may not be able to. Especially be careful when you talk with lawyers in your own country. This makes me very nervous because we have had some cases where local lawyers in other countries did some strange stuff. They had some hook ups with consulates and ultimately got caught.
The biggest problem is with fraud or misrepresentation. If you make a misrepresentation in attempting to get any immigration benefit, you can be barred from entering USA forever.
Going back to 214(b) denials, you can ask the consulate to reconsider. Reapply if you have a case that begs for a special consideration, like you’ve been to the U.S. many times. For example, one of my friends asked me that, if his girlfriend is refused a B visa, is it okay to bring the lady in on a K-1 (fiancé visa)? My take is do not use the fiancé visa in lieu of B-1 or B-2 visa, because if you do not have the intention to get married, the government can consider it to be fraud. So make sure you want to get married within 90 days after they enter the U.S.
One more point -- there is a legal fiction created in U.S. immigration law about ties to your home country that says you can overcome 214(b) denial if you have ties to your home country. That in my mind is a legal fiction. To demonstrate ties is very difficult. Of course, if you have family in your home country, that’s a good example of ties but to say you have property, but property can be sold, so I don’t think that’s really ties. Having business is also not really a tie as a business can be sold. Hence demonstrating ties to your home country is usually a difficult thing to do.
This issue has come up several times recently. Feel free to ask me specific questions on the website, in a forum, or on a community conference call.
I had an opportunity to contact Mr. Rajiv Khanna regarding my TN visa extension and how to proceed , as I was little confused and what could be the most appropriate way and how to move forward with. Talking to Rajiv really made it very simple how to move and get it done , Rajiv is very experienced and very caring towards his clients has brings out lot of confidence , I am sure that pursuing my TN visa extension through Rajiv will be fine and successful.