MVP LAW GROUP – Immigration Q&A Forum, Friday, December 3rd, 2010

Posted On: December 3, 2010

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H1B CAP still available? If so, can I still file and get accepted before the cutoff?

Answer #1
As of November 26, 2010, there were approximately 14,600 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 1,600 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvplg.com.


Question #2 – Employment Based Immigration, Green Card – Labor Certification
We filed a labor application and it was approved for a software engineer. We have not received the certified labor application in the mail (approved several weeks ago) and wish to move to the next step, file the I-140. What can we do?

Answer #2
Generally, there are two options available to you; however, both are rather similar. The recommended route is to file the I-140 petition with a request that the United States Citizenship and Immigration Service (USCIS) obtain the certified Labor from the Department of Labor (DOL) itself. The other option is to write a letter to the DOL notifying them that the USCIS will be requesting the certified Labor from them directly for purposes of filing the I-140 petition.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am planning on traveling to Canada during the Winter Holidays. I have heard through various people that when I attempt to pass the border back to the US, Customs may change my I-94 expiration date. Is this true?

Answer #3
Although you may have a valid visa that was approved by the USCIS, the Customs and Border Patrol (CBP) Officers operate under their own set of rules. If you have legitimate/bona fide paperwork evidencing your employment and a valid work visa or other proof of your eligibility to be in the US when you attempt to cross the border from Canada to the United States, the CBP Officer should stamp the new I-94 with the expiration date of your current valid visa.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 was denied and my employer has appealed the decision. My H1 is due to expire next May 2011 as I am currently in my 6th year. Can we apply for H1 extensions based on my pending I-140 appeal? If yes, for 3 years or for 1 year?

Answer #4
Under AC21, yes you may be eligible to file an H-1B extension beyond the six year period if you appealed the denied I-140 in a timely manner (before the deadline). An applicant is eligible to file for H-1B one-year extensions if they have a pending I-140 petition appeal at the Administration Appeals Office (AAO).


Question #5 – Employment Based Immigration – Green Card
I have a US green card, but I came to India without filling re-entry permit form as due to recession time not getting jobs even in three months, can I fill from it on India?

Answer #5
If you have a US Green Card, you do not have the have a re-entry permit (the green card itself is your authorization to be in the US), you have the status of a Lawful Permanent Resident and may enter and exit the country based on your U.S. Green Card. Re-entry documents are requested by applicants when their Adjustment petitions (I-485) are pending with the USCIS. Therefore, once you obtain a U.S. Green Card, you are allowed to travel inside and outside the U.S. without having a re-entry permit (Advance Parole document).


Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I got my H1B approved in 2009. Recently I saw that my I-797C form, states that my "Valid from" is from10/1/2009 to 3/29/2012. This is strange, since most of my buddies have it till 9/29/2012. Is this an error. Can I legally stay till Sep, i.e. till H1B is renewed? Kindly help me as this is bothering me a lot. Thanks in advance.

Answer #6
The USCIS can decide the date of the expiration of your H-1B visa status on their own. You may request an end date, but the USCIS will give you the date they wish. However, it could have been a typo/misunderstanding, therefore, you can contact the USCIS National Customer Service at 1-800-375-5283 and make a service request so that your case will be re-opened and reviewed to determine if the expiration date is correct or needs to be changed. Additionally, if a Work Order/Purchase order was included in your petition to the USCIS, they may have relied solely upon the end date of the work order/purchase order. These are issues you may wish to investigate before contacting the National Customer Service number.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
Are your fees included in the fees to go to USCIS for filing an H-1B petition?

Answer #7
No, our legal fees are separate and distinct from the filing fees paid to the USCIS for the processing of the H-1B petition. The USCIS filing fees have increased as of November 23, 2010, please see below:

USCIS filing fees:
$325 for Form I-129
$750/$1500 for Form I-129DC (depends upon amount of employees of company)
$500 for Fraud Fee
$1225 for Premium Processing (entirely OPTIONAL)
$2000 new fee ONLY if employer has over 50 employees with over 50% of them on a nonimmigrant visa (H or L)


Question #8 – Family Based Immigration
My Grandfather (Dad's Dad) was a US citizen and he had filed an I 130 petition (Immigrant petition for relative, fiancé, or orphan) for my dad in Feb 2007. Unfortunately, my grandfather passed away this April. My dad's sisters are US citizens and they are willing to take over the case, if we can transfer the petition. I would like to know if there anything that can be done with this petition now? Or is it a closed chapter?

Answer #8
Under regulation 8 C.F.R. § 205.1(a)(3)(i)(C)(2), an I-130 petition is automatically revoked upon the death of the petitioner, unless:
USCIS determines, as a matter of discretion exercised for humanitarian reasons in light of the facts of a particular case, that it is inappropriate to revoke the approval of the petition. USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 C.F.R. part 213a as a substitute sponsor.

Only a spouse, parent, mother in law, father in law, sibling, child, son, daughter, son in law, daughter in law, brother in law, sister in law, grandparent, grandchild or legal guardian of the principal beneficiary is eligible to be a substitute sponsor. A substitute sponsor must also be a U.S. Citizen/national or Lawful Permanent Resident (LPR), be at least 18 years of age, be domiciled (live) in the U.S. and meet all of the financial requirements of a sponsor.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
For a part time H-1B worker, what is the minimum number of hours per week and days per week of work required to be eligible for maintaining the part-time H1B visa status?

Answer #9
40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time. The regulations do not provide a minimum number of hours per week or days per week to be considered a part time H-1B worker. The I-129 petition and certified LCA must cover the jurisdiction of employment, hours per week and pay per hour. If the position becomes full time, an amended H-1B petition would need to be filed with the USCIS


Question #10 – Family Based Immigration
I am a US Citizen. I have a sister that lives in Antwerp, Belgium. I would like for my sister to have a Green Card and she can live with me in the US. With my sister case she is married and her husband is a Belgium Citizen. All I know is I would like my sister to come to the United States and obtain a Green Card. I would like to sponsor or bring my sister to come to the United States. I know that if I would like to sponsor my sister I need to file Form I-130, Petition for Alien Relative, Form I-864, Affidavit of Support, and Form I-485, Application to Register Permanent Residence or Adjust Status. I was wondering is there any better approach for my sister come to the US and what would you recommend me to do. Thank you for your time and I hope to hear from you soon.

Answer #10
In order to sponsor an applicant for lawful permanent residency, a sponsoring relative must provide evidence of the following: They are a United States citizen or a Lawful Permanent Resident of the U.S.; they can support the dependent relative at 125% above the mandated poverty line; and they must also establish proof of their relationship to the dependent relative. If you are a U.S. Citizen, then the family fourth preference category is what you would file under.
A sponsoring relative should first submit an immigrant visa petition, (Form I-130, Petition for Alien Relative). This form should be accompanied by proof of the relationship between the sponsoring relative and the dependent foreign applicant, along with the Affidavit of Support (AOS) and then the I-485 petition once the underlying I-130 petition has been approved.


MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, December 17th, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.