MVP LAW GROUP – Immigration Q&A Forum, Friday, August 5th, 2011

Posted On: August 5, 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 – Employment Based Immigration – Green Card (Biometrics)
I went for ASC fingerprint appointment with my wife. She received code 2 biometrics and I received code 3 biometrics. What do these codes mean?

Answer #1
In order to inform the ASC what data they need the USCIS places a code in the upper right corner of the appointment notice.
Code 1 = Ten (10) fingerprints ONLY
Code 2 = Index fingerprint, Photo and Signature
Code 3 = Ten (10) fingerprints, Index fingerprint, Photo and Signature


Question #2 – Temporary Travel as a Non-Immigrant
For how long can a person stay in US on a Business Visa (B1/B2)?

Answer #2
It depends, normally for a period of 6 months; however, whatever date the Customs and Border Patrol (CBP) stamp on your I-94 card is the length of time you are eligible to remain in the U.S. lawfully.


Question #3 – Employment Based Immigration – Green Card (Biometrics)
My priority date is current – waiting on issuance of GC. Just received second biometrics appointment notice, as first was received back in 2007. Do I have to attend the second appointment?

Answer #3
Yes, you should appear for the fingerprint appointment. If your fingerprints were taken over 15 months ago, they have expired and the USCIS requires a new set in order to continue with the processing of your AOS petition.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP?

Answer #4
As of July 29, 2011, there were approximately 42,300 H-1B Regular CAP subject nonimmigrant visas remaining and 6,200 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.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 #5 – Employment Based Immigration – Green Card (Biometrics)
Can I appear for the biometrics before the date printed on the notice which is Aug 18? Few of my friends have managed to get it done much before the date printed on the notice so I wanted to ask you if its okay to take a chance?

Answer #5
There are procedures and policies set in place by the USCIS so that petitions are adjudicated and processes are completed in a timely manner. The USCIS has scheduled the appointment for the date listed due to their tremendous workload at the present time. We recommend that you attend the biometrics as scheduled. Please be aware that the USCIS has the discretion to turn you away if you do attempt to have your fingerprints taken outside of the time listed on your appointment notice.


Question #6 – Temporary Work Visas – H-1B Nonimmigrant Visa
I recently got a new project in Redmond, Washington. I will be working at a client in Redmond. I have a certified LCA for my location in Boise, Idaho which was filed with my H1B petition. Does my employer need to file a new labor for Redmond, WA? If so can you guide me and my employer in filing labor in a new state?

Answer #6
According to the regulations governing the H-1B program, when you move to a new location outside of the geographical location listed on the original certified LCA, a new LCA must be submitted to the Department of Labor (DOL), as well as an amended petition filed with the USCIS. In summary, since your location change would be considered a "material change" in your previously approved employment, you would need to file a new LCA as well as the amended petition to stay within the regulations.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am in the process of transferring employers and I don’t know if I can get a hold of an ‘end client letter’. Can we submit my petition without the end client letter?

Answer #7
You may submit the case without the end client letter; however, you most likely will receive a request for additional evidence (RFE) asking for an end client letter, which will further delay the approval. The most important thing the USCIS wants to see when filing an H-1B petition for third party placement is the contractual placement of the beneficiary and the establishment of a bona fide employer-employee relationship. They want to make sure that the duties the employee will be engaged in at the third party client site are ‘specialty occupation’ duties, and the end client letter attests to that exact information. This was not always the case; however, now a days, there are a lot of companies that take advantage of the H-1B program and place applicants at third party sites and do not retain any employment relationship with them, so much so that the USCIS released a memo back in January of 2010 indicating the acceptable documents to establish the legitimacy of the third party placement. Therefore, in order to obtain an approval, you have to document the above information – ‘contractual placement’ of the applicant and that the ‘bona fide employer-employee relationship’ will continue to exist throughout the requested period.

Helpful Resources:
USCIS Memo - January 8, 2010
USCIS Q&A Guidance


Question #8 – Visa Bulletin
Where do I find the visa bulletin?

Answer #8
The Department of State's Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:
http://www.travel.state.gov/visa/bulletin/bulletin_1360.html.
To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address: listserv@calist.state.gov and in the message body type: Subscribe Visa-Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe)


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
My last name has been omitted from form I-129 receipt notice. All my paperwork and G-28 had both my first and last name spelled correctly. Last Name omitted on I-129 receipt, what do I need to do now?

Answer #9
You will need to contact the USCIS National Customer Service number (1-800-375-5283) and speak with a Representative to request that the mistake be corrected, so that your I-129 Approval notice (Form I-797) will provide your first and last name.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
I need to renew my H-1B visa. I have my H-1B visa since 2003.I already filed for my green card. Currently, I'm at the last step waiting for I-485 approval. My I-140 has been approved. I have my EAD. I spoke with my employer, they are willing to sign the paperwork and renew my H-1B. However, they are not willing to pay for the attorney fee and filing fee. Will it be alright for me to pay all the fees (attorney fee + filing fee)?

Answer #10
Absolutely not. The legal fees for the preparation and filing of the H-1B nonimmigrant extension petition should be borne by the Employer. Additionally, the USCIS filing fees shall be borne by the Employer. The H-1B nonimmigrant visa program calls for sponsorship, meaning the Employer must “sponsor” you, meaning pay the necessary fees and support your employment 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, August 19th, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog.