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.
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.
Planning to change my employer. Priority Date: Sept 2014 (EB2). H1: on my 5th Year (Filed for an extension it is currently in process). My plan is to change my employer once my extension is approved but I have the following questions. I am 100% sure my employer is going to withdraw my I-140. How is my H1 transfer going to work?
First of all the moment, your I-140 is approved no matter which category EB-1 or EB-2, the Priority Date is yours to keep that means if you got your green card filed in let's say 2017 and you left this employer after the I-140 approval, they revoked your I-140 and you started another green card in 2020 your Priority Date will be still 2017 because your I-140 was approved. So the moment the I-140 was approved the Priority Date becomes your property and it can be carried across categories, across employers, and across geographical areas. So if you go from a PERM filing in New York to an employer in California and your previous filing was EB-3 next filing is EB2 or even EB-1 you can carry the date of the work petition as long as the I-140 was approved. The moment the I-140 is approved, the Priority Date is yours.
There are limited exceptions unless the I-140 is revoked for fraud, etc., by the USCIS. Even if the employer revokes the I-140 you will keep your Priority Date. In addition to that, if the I-140 gets approved and stays approved for 180 days you will not only carry your Priority Date you will carry your right to extend your H-1 through any employer indefinitely. You will get a second benefit after 180 days and if the lawyer revokes the I-140 you will still get the benefit of both Priority Date and the right to extend your H-1 through any employer. The government has also said if you have an H-4 EAD for your spouse, your I-40 stayed approved for 180 days your wife's or your husband's H-4 EAD is safe even if the old employer revokes the I-140 later on as long as the I-140 stayed approved for 180 days. So if you left but the I-140 stayed approved for 180 days H-4 EAD is safe. That, in a nutshell, is the general law. More
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 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.
Release Date
Effective Dec. 12, 2022, U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to allow USCIS to automatically extend the validity of Permanent Resident Cards (commonly called Green Cards) for lawful permanent residents who have applied for naturalization.
Question: My sister has been on F-1 status, currently on OPT and I want to file for her EB5 visa. I will fund her 75% of my money with cash that I earned from W2 and may get an equity loan if needed (total 800K). She wants to open an IT consulting company in Rural Area while on OPT. I have the following questions.
1. Is an IT consulting company a valid investment in terms of USCIS because one attorney mentioned it is not?
2. Does the count of hiring U.S. residents begin after the company is founded or after an I-526 application is filed?
3. How long will it take to get a conditional green card? How about non-conditional?
4. Is it a good idea to file now while on OPT-EAD or wait until she gets H-1B? She has another 2.5 years remaining on OPT.
5. Is it okay to use AP/EAD after she gets it while OPT-EAD? Can she still apply for H-1B after I-1485 is filed?
1. Not only should there be an investment that investment should be needed to set up that business.
2. When you file your first set of forms (Form I-526) at that time you provide a business plan and you tell the government that once the I-526 is approved within two years or soon thereafter you will be able to create ten American jobs. You have about four years to create American jobs.
3. You can actually look those times up.
4.This is also complicated because if she gets her H-1B she's allowed to work only for the H1B employer. This should be planned in detail with a lawyer. At least theoretically this is feasible
5. She can still apply for an H-1B after I-485 is filed. It is theoretically possible, at least at the USCIS level but at the consulate level it is a different story.
In 2008 while I was working in gas station I was caught selling alcohol to minor. I was in student visa at that time and was getting paid in cash. This was unauthorized work. I was not arrested but went to the court and the final verdict of case came to attempt to sell alcohol to minor which falls into misdemeanor C. Right now I am in H-1B and I have filed my green card through my employment. My Labor and I-140 is approved and waiting for my PD date to be current to apply I-485. So what are my chances to get I-485 approved having that case in my past? I have got mixed answers from the attorneys I have contacted so far. Some said I should be fine and some said if USCIS ask about my work authorization at that time then my petition will be denied due to violating my F-1 status. Please let me know what you think. Will USCIS go further to ask that since you are selling alcohol on F-1, then you must have violated immigration law by being employed without work authorization?
If you have criminal conviction, lot of times you can have criminal convictions for minor problems for example you got into altercation with somebody or some kind of public nuisance conviction, in this case selling alcohol to minor did not check the ID. So the question is how does that impact my immigration status?
First of all, there are 2 categories of crimes misdemeanors and felonies. Felonies are anything which are punishable don't have to receive that punishment but punishable by more than a year. They are more serious crime and other is misdemeanor is year or less than a year.
So we look at the crime is misdemeanor or it is a felony, then we look whether there is moral turpitude or not. Moral turpitude is the term for dishonesty, reckless, disregard or safety of other people or attack on other people. So these are typically they call them offenses of moral turpitude. So if there is moral turpitude and there is felony chances are, you got the problem. But if there is only one misdemeanor even if it’s turpitude crime it is exempted by something called Petty offense exception. Petty offense exception says if you have only one misdemeanor and the sentence actually imposed upon you was less than 6 months, whether you actually served it or not. Even if it’s a suspended sentence it is considered to be sentence than we leave you alone, give you H-1, F-1 or Green card so petty offense exception. So once again we look at the crime if it is a crime of moral turpitude or not, if it’s not chances are you are going to be OK. If it’s a Felony of moral turpitude you have a problem. If it is only one crime misdemeanor you don't have problem, very generic overview.
Normally when I look into these cases, first thing I do is try to see if we get away from conviction. So if we get the case settled with the government, plea bargain entered without the conviction.
What is conviction under Immigration law?
A conviction under immigration law is where you admit having committed the offense. If you have to admit the offense then it is conviction, no matter what kind of deal we make. First of all we try to get away from conviction, if there is no conviction there is no crime. If we can do that then we are safe. If we are not able to do so we bargain for misdemeanor. That’s the way typically we handle these cases. . Make sure it is misdemeanor under the state law. You say that it is misdemeanor C. I don't know what that means. State law has to be checked. But it looks that you are going to be OK.