MVP LAW GROUP – Immigration Q&A Forum, Friday, November 19th, 2010

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
My case was filed in Oct 2005 and it is current and still waiting. I tried opening Service Request and took InfoPass as well. I got InfoPass appt yesterday in local VA office. They were not able to tell me about my case only that it is still under review at the local Baltimore office where it was transferred to in August 2009. Please let me know what I need to do?

Answer #1
I would suggest making another InfoPass appointment at the local Baltimore, MD office to determine the status of your pending case as this is where your case is presently pending. Taking an InfoPass appointment may help you to determine if any additional documents are needed in order for the USCIS Officer to finish the processing of your case so that a decision can be made.

Question #2 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on with my pending H-1B application, been pending since July 2010, no RFE issued yet. I heard that I can contact USCIS and make a service request for them to look further into the case and why it is taking so long. Is this true? How do I do it?

Answer #2
For a pending I-129 petition, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

If making a service request to the Customer Service Center, please have the following information handy so that the Officer/Agent will be better able to assist you: your full name, the applicant’s full name, your complete company mailing address, the applicant’s complete mailing address, the applicant’s date of birth, the applicant’s receipt number for the pending application/petition, and the filing date of the applicant’s pending application/petition. If your case is outside of the normal processing time, the Officer/Agent should initiate a service request and will provide you with a timeframe for a response and a referral number in case you have to call back because no correspondence was issued within the timeframe suggested.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
For a part time H-1B worker, what is the minimum number of hours per week and days per week of work required to be eligible for maintaining the part-time H1B visa status?

Answer #3
40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time. The regulations do not provide a minimum number of hours per week or days per week to be considered a part time H-1B worker. The I-129 petition and certified LCA must cover the jurisdiction of employment, hours per week and pay per hour. If the position becomes full time, an amended H-1B petition would need to be filed with the USCIS.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the FY 2011 CAP still available or must I wait until April 1, 2011 to submit a new H-1B?

Answer #4
As of November 12, 2010, there were approximately 17,200 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 2,600 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 FY2011 H-1B Cap updates, please refer to www.mvp.com.

Question #5 – Employment Based Immigration – Green Card
My spouse and children have received their Green Cards but I have not yet received mine. I filed for our GCs through my employer. Is there a problem with the processing of my case? Could my case have been denied? What do I need to do? Any guidance is appreciated.

Answer #5
Based on the small amount of information provided, it seems like there may just be an issue with the issuance/mailing of your Green Card. Your husband and children would not have received their Green Cards if there was a pending issue with your case. From the information you provided, you are the primary applicant and your spouse and children are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 45 days from the date your spouse and children received their Green Cards by calling 1-800-375-5283.

Question #6 – General – USCIS Filing Fees
When do the new USCIS filing fees go into effect?

Answer #6
The new fee schedule goes into effect Nov. 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee, or they will be rejected. The new fee schedule increases application and petition fees by an average of about 10 percent but does not increase the naturalization application fee.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
My H1B visa got approved in 2009 which was filed by another company. I did not get a chance to travel to USA and even my visa is not stampted. Now I am with other employer. Can I transfer my H1B to this new employer?

Answer #7
The safest option to utilize at this point given the facts as you have provided is to file a new H-1B petition. Transfers and Extensions do not apply in this scenario because you have never entered the U.S as an H-1B nonimmigrant. Once the petition is filed and approval received, you would need to attend the Consulate interview and if all goes well, you would be able to then travel to the U.S. and after speaking with CBP, enter as an H-1B nonimmigrant visa holder.

Question #8 – General – Employment Based Immigration, Green Card
I have an approved I-140 petition and wish to file my I-485. I am currently on H-1B and my wife, H4. She wants to be able to work so we would like to file 485 and obtain EAD documents. My lawyer says I must wait for my priority date to become current. Please explain for me what “priority date becoming current” means? I filed in EB2 category from China.

Answer #8
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. Currently, there is a backlog in the Employment-Based Second Preference (EB-2) category, which is the category 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.

Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.
In addition to the above website, you can go to http://immigrationroad.com/green-card-tracker.php and track how many green card applicants are in front of you using your priority date and preference category.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am currently working for a company, but I got an offer from another individual to start a new business with him as an equal partner. I really want to pursue this but am concerned. Would it be better for me to change my status to self employed and apply for the H1B visa for self sponsership?

Answer #9
To put it simply, the H-1B nonimmigrant visa is an employment based temporary nonimmigrant work visa. This means that you must first have a sponsoring employer willing to sponsor you before you may petition for and obtain an H-1B nonimmigrant visa. The H-1B regulations do not allow for self sponsorship.

Question #10 – Employment Based Immigration – Green Card – EAD Renewal
I filed for my EAD renewal back in May 2010 and it is still pending. My current EAD expires in two weeks. Can I expedite the EAD renewal process since my card is expiring soon, can I continue to work with the receipt notice? Can I obtain a temporary EAD to continue working?

Answer #10
If an EAD renewal has been pending for 75+ days, you may initiate an ‘outside the processing times’ Service Request with the USCIS. If you do not receive your EAD approval by the time your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved and the card is in your hand. You MAY NOT continue to work using the EAD receipt notice as the receipt is not evidence of an approval. There is no such thing as a temporary EAD.

**You may file an EAD renewal request up to 120 days in advance of the expiration of your current EAD and should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD to continue working.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, December 3rd, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.