MVP LAW GROUP – Immigration Q&A Forum, Friday, January 21st, 2011

Posted On: January 21, 2011

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Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H-1B FY2011 CAP still open?

Answer #1
YES! As of January 14th, 2011 60,700 H-1B Regular CAP subject nonimmigrant visa petitions had been filed with the USCIS toward the 65,000 annual CAP. USCIS will continue to accept cap-subject 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.


Question #2 – Marriage Based Immigration –Green Card
I am marrying a United States citizen in a few weeks, do you know when I can expect to have my interview and eventually get my green card?

Answer #2
Once you have married and have submitted your paperwork to the USCIS, it is taking approximately 3-4 months nationwide to obtain an interview appointment. This is an estimate as all cases are not the same and the circumstances in one case may be different than in another. If there are any prior marriages, criminal charges, or other circumstances that could affect the case, processing may take even longer.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have been considering teaching for a while as a way to give back and was wondering being on H1-B, would I be able to hold a part-time/adjunct teaching position at a university, if given the opportunity?

Answer #3
You would be able to hold a part-time/adjunct teaching position at a university; however, the University must be willing to sponsor your H-1B visa. The University would have to go thru the normal process of preparing and filing the necessary forms and paying the necessary USCIS filing fees, if applicable, as well as paying all legal fees involved.


Question #4 – Temporary Work Visa – L1 Intra-company Transferee
What is the grace period on an L1A extension? I reside in California, my current L1A visa expires on 3/25/2011 and I’ve filed for an extension on 12/17/2010. I got a receipt for it.

Answer #4
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 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.


Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I had gone for visa stamping and was issued 221(g) blue form. This is the reason given: "Your petition is not currently reflected in the PIMS database. Processing of your case will be suspended until we can verify your petition details." According to the visa officer, I should get my passport in 10 days. I am worried, is this normal?

Answer #5
It is a normal process and there is no reason to be alarmed, this is a standard procedure, so unfortunately, you must wait until your status/case can be confirmed and then you will receive your visa stamp. As stated below by the DOS, extensions of stay and change of status petitions take longer to verify through the database.

The U.S. Department of State (DOS) has instructed consular posts that approvals of H, L, O, P and Q visa petitions must be verified through the Petition Information Management Service (PIMS) before a nonimmigrant visa can be issued. PIMS is an electronic report generated by DOS’s Kentucky Consular Center that collects nonimmigrant visa petition approval information from USCIS. PIMS contains data on initial petition approvals and on L blanket petitions that were approved in 2004 or later. PIMS does not contain information on approvals of extension of stay or changes of status petitions. Consular officers adjudicating visa applications must consult PIMS to verify the approval of the underlying nonimmigrant visa petition. If the petition approval cannot be verified through PIMS, the officer must contact the Kentucky Consular Center, which in turn attempts to verify the approval through USCIS’s Computer Linked Applications Information Management System (CLAIMS). DOS officials state that PIMS verification typically takes no more than 24 hours and that verification through CLAIMS typically takes two business days. Most cases involving initial nonimmigrant visa petitions are verified within these timeframes. However, they have received many reports of longer processing times for extension of stay and change of status cases. These cases must be verified with the assistance of the Kentucky Consular Center and can take longer to be processed. DOS has indicated that there are no current plans to include extension and change of status approval information in PIMS, which may result in significant delays for many applicants. Foreign nationals who will be applying for nonimmigrant visas should expect longer processing times due to the new PIMS and CLAIMS verification requirement. How long the electronic process will take may vary from case to case. However, same-day and next-day visa issuance should not be expected.


Question #6 – Employment Based Immigration – Green Card
Regarding a change of job, is there a recommended wait time after the green card that I can change my employer. On the EAD there was a 6mth after which I could do this, but was wondering after the GC if there is any such thing. Appreciate your answer.

Answer #6
Although the regulations are silent on this issue, we recommend that you wait at least six (6) months before changing your employer to avoid issues if you intend on applying for citizenship when you become eligible.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months, as on 31/10/2010 update. So I wasn't sure what that 2 months meant, and above all it was last updated on 31/10/2010. Can you tell me why it is taking so long?

Answer #7
Although the USCIS processing times may state 2 months, you have to factor in that when it is posted, that data is already 45 days old. Also, due to the FY2011 H-1B CAP still being available, the USCIS is busy with attempting to adjudicate change of status petitions, extensions and transfers all within the same processing times. Although this explanation is not an excuse, I just want you to be aware of the background with the processing times for the H-1B nonimmigrant visa.


Question #8 – Employment Based Immigration – Green Card
My I-140 Immigrant petition has been approved. My next step is to apply to adjust status to permanent resident. What kind of documents do I need to have for AOS application?

Answer #8
In order to apply for AOS, your priority date needs to be current, once your priority date is current, you will able to file the Form I-485, Application to Adjust Status to Permanent Resident along with the Form I-765, Application for Employment Authorization and Form I-131, Application for Travel Document. There are numerous background documents that will need to be submitted along with your petition, including: a sealed medical examination from a civil surgeon in your area, birth certificates, copies of federal tax returns, bank statements, and an employment verification letter, among other documents.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
I've been working on this product that i want to launch, if all goes well, sometime this year. This will be an E-Commerce business. With regards to me being on H1-B, would I be able to start up my own small company?

Answer #9
As a temporary H-1B nonimmigrant worker, you are NOT ALLOWED to start up your own small company. There are other types of visas available if you are seriously interested in starting your own company, but you are not allowed to start up your own small company on your H-1B visa status. If you are interested in other possible options, please contact our office to speak with one of our experienced Immigration Attorneys.


Question #10 – Marriage Based Immigration –Green Card
What is a “Stokes” interview?

Answer #10
A “Stokes” interview is the last opportunity the USCIS provides for you and your spouse to prove the bona fides of your marriage. If the USCIS does not think that your marriage is legitimate, they will schedule a “Stokes” interview. The husband and wife are separately questioned by a USCIS Officer regarding their relationship history, daily interactions, relationship in general, presence on social networking websites, etc. The interview/questioning is recorded and an attorney is permitted to attend.


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, February 4th, 2011! Please remember to submit your questions/comments on our h1bvisalawyerblog.