MVP LAW GROUP – Immigration Q&A Forum, Friday, December 17th, 2010

Posted On: December 17, 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 Visas – H-1B & L1A/L1B Nonimmigrant Visas
Does the new public law apply to transfer and extension petitions for nonimmigrant workers?

Answer #1
Under Public law 111-230, petitioners subject to the new fees must submit the fee with an H-1B or L-1 petition filed (1) initially to grant an alien nonimmigrant status (initial cases); or (2) to obtain authorization for an alien having such status to change employers (transfer cases). Therefore, the fee must be submitted with any initial H-1B filings and any transfers, but extensions with the same employer do not require the new fee.


Question #2 – Employment Based Immigration – Green Card
My spouse and child have received their Green Cards but I have not received mine. I filed for our GCs through my employer. Is there a problem with the processing of my case? Could my case have been denied?

Answer #2
Based on the information provided, it seems like there may just be an issue with the production/issuance/mailing of your Green Card. Your spouse and child would not have received their Green Cards if there was a pending issue with your case. From the information you provided, you are the primary applicant and your spouse and child are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 60 days from the date your spouse and children received their Green Cards by calling 1-800-375-5283.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H1B CAP still available? Can I still file?

Answer #3
As of December 10th, there were approximately 12,600 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 900 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.mvp.com.


Question #4 –Temporary Work Visa - H-2B Nonimmigrant Visa
What is the H-2B temporary visa? Does your firm work with these types of visas?

Answer #4
The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. To qualify for an H-2B visa, you must have a valid job offer from a U.S. employer to perform temporary or seasonal nonagricultural work and proof of intent to return to your home country on expiration of the visa.

The limitations of the H-2B visa are that the job must be temporary in nature and the need must be for one year or less, the employer's need may not be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need. H-2b time counts whether you are in the U.S. or abroad, and H-2b dependents may not work in the U.S. For more specific information on the H2B nonimmigrant visa, please contact our office to schedule a telephone or in-person consultation.


Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
What are the new USCIS filing fees for H1B visa petitions? Can we send company checks/personal checks? Who are they made out to?

Answer #5
The new USCIS filing fees for an H-1B nonimmigrant visa petition consists of the following: $325.00 for Form I-129 (increased fee, originally $320.00); $750.00/$1500.00 for Form I-129DC (same fee); $500.00 Fraud Protection fee (same); $1225.00 for Form I-907, Request for Premium Processing (increased free, originally $1000.00). For H-1B nonimmigrant visa petitions, USCIS will only accept company checks for petition filing fees. You need to make your check(s) payable to “U.S. Department of Homeland Security.”


Question #6 – General
I work for a company in Chicago, Illinois, a computer company. They have expressed an interest in sponsoring my green card. I have a friend in Maryland who used your firm for other immigration service and I wanted to know if I could use your firm to process my green card? With me in Chicago and your firm in Maryland, can we do this, is it legal?

Answer #6
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.


Question #7 – Employment Based Immigration – Green Card
I have an approved I-140 in EB-3 category filed by my previous company. I have since moved onto employment with a new company and filed AC-21 request with new employer. My new employer would also like to file for me under EB-2 category. I believe that I have all qualifications to do so. Can you have more than one immigrant petition filed/pending with the USCIS?

Answer #7
Yes, you may have more than one I-140 Immigrant Petition filed with the USCIS.


Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on. I have an H-1B application pending since June 2010, no RFE issued yet. Can I contact USCIS and make a service request for them to look further into the case and why it is taking so long. Is it true?

Answer #8
For a pending I-129 petition, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

If making a service request to the Customer Service Center, please have the following information handy so that the Officer/Agent will be better able to assist you: your full name, the applicant’s full name, your complete company mailing address, the applicant’s complete mailing address, the applicant’s date of birth, the applicant’s receipt number for the pending application/petition, and the filing date of the applicant’s pending application/petition. If your case is outside of the normal processing time, the Officer/Agent should initiate a service request and will provide you with a timeframe for a response and a referral number in case you have to call back because no correspondence was issued within the timeframe suggested.


Question #9 – Employment Based Immigration – Green Card
My priority date is current and has been since the November 2010 visa bulletin. How long do I have to wait, we’ve already waited 5 years for our green cards. Do you suggest I call USCIS and make a service request to make sure they have everything and to speed up the issuance of my card??

Answer #9
Normally when priority dates become current according to the Visa Bulletin, it takes anywhere from 30-90 days to complete the processing of the I-485 before issuing the Green Card to the primary applicant and his/her derivatives, unless issues arise during the process. If you do not receive any correspondence from the USCIS with regard to your case, I would follow up with the USCIS National Customer Service at 1-800-375-5283.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
What is the grace period on H-1B extension? I reside in Tampa, Florida, my current H-1B visa expires on 12/25/2010 and I’ve filed for an extension on 10/25/2010. Got receipt for it. I was told by my lawyer that I have 240 days grace period when an extension application is pending. I need some proof of this, is there anyway I can obtain it?

Answer #10
Under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5,H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from the date of expiration. This extension does not apply to persons seeking a change of status. During 240 days, there is no INA 245(c) bar to adjustment of status.


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, January 7th, 2011! Please remember to submit your questions/comments on our h1bvisalawyerblog. HAPPY HOLIDAYS!