MVP LAW GROUP – Immigration Q&A Forum, Friday, May 13th, 2011

Posted On: May 13, 2011

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Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Are there any H1B nonimmigrant visas remaining?

Answer #1
As of May 6th, 2011, there were approximately 54,800 H-1B Regular CAP subject nonimmigrant visas remaining and 12,700 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.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 FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.


Question #2 – Employment Based Immigration – Green Card
My Priority date will be current soon. I am currently on EAD through my spouse’s I-485 filing and wish to file my I-485 when my priority date becomes current. Can I file while on EAD or do I need to obtain an H-1b or stop working and get an H4? I apologize, I have been reviewing forums and they all say different things.

Answer #2
Based on the limited facts you have provided… pursuant to Section 245, you would be considered a restricted alien– (9) any alien who seeks adjustment of status pursuant to an employment based immigrant visa petition under Section 203(b) of the Act…who is not maintaining a lawful nonimmigrant status at the time he or she files an application for adjustment of status. Restricted aliens are not eligible to adjust unless they qualify under 245(k).


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I found a company willing to sponsor me, but they asked if I could extend my OPT (I have 8 months remaining) because the attorney said that the process to obtain an H-1B takes longer than that. Is this true? Please help.

Answer #3
The current processing time period for an H-1B petition based on change of status is roughly 3-4 months, with premium processing - 15 calendar days from receipt of the case. The H-1B CAP for FY2012 is still open and you would be able to file under the current quota, so I am not sure where the attorney is obtaining this information from.


Question #4 – Family Based Immigration – Green Card
Are there any types of restrictions on a conditional permanent resident card? Once my husband gets his green card, can he travel (internationally)?

Answer #4
Yes, he may travel internationally provided the trip is less than 6 months out of the year. The restrictions are mostly just the time frame, given most GCs are issued for 10 years, they want to make sure at the end of the two (2) years, prior to renewal of the GC, that you are still in a legitimate marriage and that the marriage was not for fraudulent purposes. Once the two (2) years are over and the conditions are removed after he applies to remove them, he should receive a GC valid for 10 years.

Within 90 days of the two-year anniversary of obtaining conditional residence, you and your husband will be required to file a Joint Petition to Remove Conditions on Residence (Form I-751). Once the conditions are removed, your husband will officially have Lawful Permanent Residence in the US.


Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I found a company willing to sponsor me, but they are strongly considering not sponsoring me due to the costs associated with sponsoring me – lawyer fees, filing fees, etc. Can I pay these fees directly to USCIS and lawyer or can I reimburse my sponsoring company, or arrange some type of payment plan?

Answer #5
NO. Lawyer fees and USCIS filing fees MUST be paid solely by the employer, not by the beneficiary. This action would be in violation of the laws governing the H-1B nonimmigrant visa program.


Question #6 – Student – F1 Visa Status
I want my youngest brother to come to USA to go to school; he has mentioned it many times. What do we need to do?

Answer #6
Please visit the following website http://www.ice.gov/sevis/students/index.htm as it will provide the steps for how your brother can obtain an F1 visa to come to the U.S. for school.

The first step for a prospective nonimmigrant student is being accepted for enrollment in an established school which is SEVP certified. There is a list of SEVP certified schools on the website listed above. Therefore, as his first step, your brother must first apply for enrollment at a college of his choice which is listed on the SEVP certified list. Once he has been accepted by that SEVP certified school, he will then need to apply for his F1 student visa. All of the steps for obtaining such status are available on the website listed above, and additional information can be found on this website http://travel.state.gov/visa/temp/types/types_1268.html.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant VisaOne of our employees is nearing his 6th year on H-1B visa status and he has an approved I-140 filed by a different company. Is it possible to use the approved I-140 to get a three year extension with our company?

Answer #7
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 #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I used all my 6 years on H-1B visa and returned to my country. I have been here for almost 6 months now and have a new job offer. 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.

Answer #8
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 a new H-1B nonimmigrant visa. However, you may qualify for some other type of nonimmigrant visa.


Question #9 – Employment Based Immigration – Green Card
I have an approved I-140 filed by company A and they also submitted my I-485 back in 2007. I have since moved onto employment with company B on my EAD. Can I file AC21 Portability letter?

Answer #9
You may be eligible to file an AC21 106(c) Portability Request if the new position and duties are the same or substantially similar to the position/duties listed in your Labor application certified by the DOL and company B is willing to take over your Green Card sponsorship.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
What document determines how long I can stay legally in the United States: my visa, my I-94 card or the expiration of my current passport?

Answer #10
Short answer: The visa stamp issued by the U.S. State Department displayed in your passport allows you to enter the U.S. at a port of entry. The I-94 card issued by an Immigration Inspector at the port of entry is your admission ticket and displays the time period you are authorized to stay in the United States. If your I-94 card expires and you did not obtain an extension, and you remain in the U.S. without taking further action, this inaction will result in you accruing unlawful presence in the U.S.


MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, May 27, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.