MVP LAW GROUP – Immigration Q&A Forum, Friday, April 13, 2012

Posted On: April 13, 2012

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. Therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – H-1B Nonimmigrant Work Visa
I am an international student with F1- status and Associate degree that I obtained here in US. Am I qualified to change my status to h1B VISA?

Answer #1
Unfortunately, you are not, unless you possess qualifying work experience. To be eligible to obtain an H-1B visa, you must have a Bachelor’s degree in a Specialty Occupation field, and the position for which you are being sponsored must require at a minimum the attainment of a Bachelor’s degree in a specific specialty occupation field.


Question #2 – H-1B Nonimmigrant Work Visa
Is H-1B CAP moving faster or slower than this time last year? How many have been filed at this point?

Answer #2
Faster. According to the USCIS, H-1B petitions being filed subject to the CAP have doubled since this time last year. As of April 9, 2012, there were approximately 17,400 H-1B Regular CAP subject nonimmigrant visas filed and 8,200 H-1B Masters Exemption nonimmigrant visas filed. 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.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 #3 – Family Based Immigration
Who is responsible for scheduling the Interview, my fiancé or the Consulate itself?

Answer #3
The Consulate is responsible for scheduling the Interview and will send you notice of the date and time of the scheduled interview.


Question #4 – H-1B Nonimmigrant Work Visa
I filed I-485, am waiting for EAD, my H-1B expires in May 20, can I wait until first week of May to prepare and file the H-1B, in hopes of receiving my EAD in the meantime? I do not want to get any unlawful presence/status. Please advise.

Answer #4
As long as you timely file your H-1B extension, 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. During 240 days, there is no INA 245(c) bar to adjustment of status. We recommend that you maintain H-1B status while your I-485 is pending as a safety net in case any problems arise in the adjudication of your I-485 petition.


Question #5 – H-1B Nonimmigrant Work Visa
How long does it take for the USCIS to review an H1B case that has been returned by the Department of State? When can we contact USCIS to check on the status?

Answer #5
The USCIS has indicated that when cases are returned to them from the Department of State (DOS), those cases are reviewed and processed when time and resources allow. Accordingly, they are low priority in the eyes of the USCIS. Pursuant to the USCIS National Customer Service Center (1-800-375-5283), you may initiate a Service Request after waiting 180 days from the date your case is returned to the USCIS.


Question #6 – H-1B Nonimmigrant Work Visa
Is a Nurse Practitioner considered a Specialty Occupation? A doctor’s office has given me a job opportunity (I’m on OPT) and I wanted to make sure before I accept that this is doable?

Answer #6
If you have at least a Bachelor’s degree in a specific field and the position requires at least a Bachelor’s degree in a stated filed, then you may be eligible for the H-1B nonimmigrant visa. In the medical industry, most of these occupations require graduate school. This type of position also requires extensive skill, knowledge and experience.


Question #7 – Employment Based Immigration – Green Card
The May visa bulletin shows that priority dates went back to 2007 for my category, EB2, I’m from India. My priority date was August 2010. Please explain to me what “priority date becoming current” means?

Answer #7
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. If there is a backlog in the preference category in which you were filed in, this means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait. If your priority date was after May 2, 2010, then you will have to wait.


Question #8 – H-1B Nonimmigrant Visa
I have a student on OPT currently working for my company. I need to apply for her H-1B under this CAP. Her OPT expires in August of 2012. Will she have to return home or will she be covered under the “CAP GAP”? I am not sure of eligibility requirements for H1B CAP GAP. Please assist.

Answer #8
H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension. Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. Timely filed means filed within the H-1B acceptance period beginning April 1, 2012. The paperwork (LCA and I-129) must also reflect a beginning employment date of October 1, 2012 to be covered under the CAP GAP.


Question #9 – Employment Based Immigration – Green Card
We appealed a denial of an I-140 Immigrant Petition filed on behalf of one of our employees. How much longer can we expect to wait for a decision to be made?

Answer #9
According to the Administrative Appeals Office (AAO), Appeals filed under the EB2 preference category (Professionals with Advanced Degrees) are currently being reviewed within 23 months of filing the appeal. Appeals filed under the EB3 preference category (Skilled and Professional workers) are currently being reviewed within 36 months.


Question #10 – H-1B Nonimmigrant Work Visa
Can an H-1B applicant change employers during the visa process?

Answer #10
Yes, an H-1B applicant is free to change employers during the visa process, changing H-1B employers is considered an H-1B transfer, and that petition would not be counted against the CAP, unless they are changing from a CAP EXEMPT employer to an employer who is not CAP EXEMPT.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, April 27, 2012!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!