MVP LAW GROUP – Immigration Q&A Forum, Friday, January 7th, 2011

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?

Answer #1
As of December 31st, there were approximately 7,700 H-1B Regular CAP subject nonimmigrant visas remaining. As of December 31, 2010 a sufficient number of Masters CAP cases have been received by the USCIS. 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvp.com.

Question #2 – Employment Based Immigration – Green Card
My priority date is current as of the January 2011 visa bulletin. I heard we could call them (USCIS) and provide details of our case so that based on first come first call they would process and issue the GC.

Answer #2
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have exhausted my 6 years on H-1B visa and returned to my home country. I have been here for 180 days; can I now apply for a new H-1B visa under the current cap to return to U.S.? Please let me know so we can move forward immediately.

Answer #3
According to the regulations, once you have exhausted the 6 year limit on H-1B, you must return to your home country for one (1) year before you can petition again for an H-1B nonimmigrant visa.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our employees is going on vacation from 02/03-03/10 and we are getting his h1b ext. in June and he has to go for visa in home country and he is requesting us to premium process his H1 ext. and wondering whether we can do it right now and can get approval before he leaves and he wants to appear for Visa with the new one. Please suggest whether we can do it right now or can we do it after he comes back from the vacation.

Answer #4
The answer to your question depends upon the specifics of your case; whether an end client will need to be obtained and if it can be obtained within the time period, whether forms and filing fees can be returned within a reasonable time; whether the LCA will be certified within the time frame given; etc. There are many circumstances that will need to be considered before a final decision is made on whether to prepare and file the extension now or wait until the return of the beneficiary to the U.S. We can file cases with the USCIS within 6 months of the current visa’s expiration. Therefore, if his current H-1B expires on 6/2011, you could prepare and file the extension case now. Knowing the above information, please consider all of the circumstances of the case before you make a decision to proceed forward.

Question #5 – Marriage Based Immigration – Conditional Permanent Resident
I would like to know the procedure for removing conditions. When can I file? I’m married to a U.S. Citizen and my conditional green card is set to expire in May 2011.

Answer #5
You can file to remove the conditions 90 days prior to the expiration of your second anniversary as a conditional resident. It is very important that you file Form I-751 (Petition to Remove the Conditions on Residence) within the 90 day window of time. If you file too early, the USCIS will send your application back. You may file at any time during the 90 day window, but it is suggested that you file fairly early in the window. If you fail to properly file Form I-751 within the 90 day period, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you and a hearing will be conducted where you will be given the opportunity to rebut the government’s allegations against you.

Question #6 – Temporary Work Visas – H-1B Nonimmigrant Visa
One of our employees is nearing his 6th year on H-1B visa status, and he has an approved I-140 in the EB2 category filed by a different company. Can we use that approved I-140 to get a three year extension with our company?

Answer #6
Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #7 – Employment Based Immigration – Green Card: Biometrics
The fingerprints that the USCIS have on file are set to expire soon. Should I take Info pass appointment to give them a new set of fingerprints?

Answer #7
As written on the I-797C, Notice of Action, in some types of cases USCIS requires biometrics. In such cases, USCIS will send you an appointment notice with a specific date, time and place for you to go to a USCIS Application Support Center (ASC) for biometrics processing. You must WAIT for that appointment notice and take it to your ASC appointment along with your photo identification.

Question #8 – Employment Based Immigration – Green Card
My husband received his GC and his DOB is wrong on the card. How do I fix this?

Answer #8
You will need to file Form I-90, Application to Replace Permanent Resident Card. If you believe this was an administrative error on the part of the USCIS, you will need to check box d in Part 2, number 2 of the application. Along with the Form I-90 and accompanying filing fee please attach the incorrect card and evidence of the correct information (original birth certificate; passport; previous approval notices, etc). You will need to submit the USCIS filing fees (made payable to the “U.S. Department of Homeland Security”) even though you believe it was an administrative error. If you send the form with accompanying documentation without the filing fees, the case will be returned until you provide those fees. If the USCIS agrees that the error was administrative in nature, they will issue a new card and return the filing fees.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can you sponsor my H-1B or find a company to sponsor me? I am ready to come to the U.S. and work; I have BS in Computer Science and three year experience in computer programming. What’s the process?

Answer #9
We are a law firm that will assist in the preparation of the paperwork (Forms and documents) for your H-1B non-immigrant petition once you find an employer willing to sponsor you for employment; however, we cannot find you H-1B sponsorship. In summary, once you have secured an H-1B sponsor (U.S. employer), we can then assist in the process.

The normal process for H-1B sponsorship starts when you or your employer contacts our office to initiate the process. You or your employer would contact our office, sign a legal agreement detailing the legal fees associated with the preparation and filing of the H-1B visa petition, you would then complete the H-1B questionnaire, and send all requested background documents to our office to begin the process. Once the legal payment, the completed questionnaire and background docs have been received in our office, we would be able to begin preparing your case. Once your forms have been prepared and thoroughly reviewed, we email the final documents to your sponsoring employer for their review and signatures. These forms must then be returned to our office with the requisite USCIS filing fees, and will be filed on your behalf with the USCIS. Upon receipt of the H-1B petition, the USCIS will issue a receipt notice containing a specific number which will allow you to monitor your case while it is being processed.

Question #10 – Employment Based Immigration – Employment Authorization Document (EAD)/Advance Parole Document (AP)
My EAD and AP are expiring this year. When is the earliest that I can file my renewal petitions?

Answer #10
According to the USCIS, you can petition for an EAD renewal no more than 120 days in advance of the expiration of your current EAD. For instance, if your current EAD card expires on October 16, 2011, the earliest you can file is on or after June 19, 2011.

According to the USCIS, you can petition for AP renewal no more than 30 days in advance of the expiration of your current AP or the USCIS could issue an RFE requesting your current AP document before issuing a new AP document.

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 21st, 2011! Please remember to submit your questions/comments on our h1bvisalawyerblog.