MVP LAW GROUP – Immigration Q&A Forum, Friday, February 4, 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
My company petitioned on behalf of a foreign national back in 2008. The national arrived in 2009 and has since obtained her PT license. Back in 2008 we filed her as a PT assistant. Is there anything we need to do now other than file a new LCA?

Answer #1
This sounds like a material change in duties, salary and possibly location and will require not just a new LCA but an amended H-1B petition will need to be filed with the USCIS. A new LCA alone will not update the records with the USCIS; it only creates a new record with the Department of Labor (DOL). If you are interested in placing this individual at a new client site based on her PT qualifications, a new petition will definitely need to be filed with the USCIS, not just the filing of a new LCA.

Question #2 – Employment Based Immigration – Green Card
I appealed my denied my labor application to BALCA. My employer just got notice that my appeal has been docketed. When can I expect a decision?

Answer #2
According to the United States Department of Labor website, it is approximately taking up to two (2) years for a case to be reviewed by BALCA from the date of filing the appeal.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H-1B FY2011 CAP still open?

Answer #3
NO. As of January 26th, 2011 USCIS reported that they have received a sufficient number of H-1B nonimmigrant visa petitions to reach the 65,000 annual CAP. The H-1B FY2012 CAP will open on April 1, 2011 with employment beginning October 1, 2011. For more information contact MVP Law Group, P.A.

Question #4 – Employment Based Immigration – Green Card
Is an approved I-765 any indication that the I-485 is getting close to approval and would eventually be approved without a hitch or are they autonomous processes?

Answer #4
They are separate and distinct creatures. Therefore, to put it simply, an approved I-765 is not an indication that the I-485 is getting closer to being approved.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have a student on OPT currently working for my company. I need to apply for her H-1B but wasn’t able to make it under this CAP. Will she have to return home prior to October 1, if I file her under the new cap in April?

Answer #5
According to the regulations, an F-1 student who is the beneficiary of an H-1B petition and who has timely filed a Change of Status petition will have his/her status and work authorization (if in OPT) automatically extended until October 1st of the following fiscal year so that there is no “gap” between the time her F-1 stay would have expired and the October 1 start date for the H-1B.

Question #6 – Family Based Immigration – Green Card
My father is a U.S. Citizen and agreed that he would sponsor my GC. He currently makes roughly $21k annually. Can he sponsor me for my GC?

Answer #6
To qualify as a sponsor, he must demonstrate that his income is at least 125 percent of the current Federal poverty guideline for his household size. Please refer to the Federal Poverty Guidelines to determine if he could be the primary sponsor for your family based GC application.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am presently working on H1 for an exempt University and have found an employer willing to sponsor me in the private sector. Now that the cap has been reached, do I have any options? Can I leave my present employer?

Answer #7
According to a letter dated May 23, 2007 from the Chief of Business and Trade Services of the USCIS, an H-1B applicant may port from a cap-exempt employer to a cap-subject employer if no H-1B visas are available as long as the cap-subject H-1B application is eventually approved and the LCA covers the entire period of employment.

Question #8 – General
My father is in the U.S. on B2 visa obtaining medical treatment for a rare disease. It is unsafe for him to return to his country at this time, plus his treatment isn’t finished. He would like to renew/extend his visa. Can he and how can he?

Answer #8
If your father wants to extend his stay in the U.S., he will have to file an extension with the USCIS. He will need to file Form I-539, Application to Extend/Change Non-immigrant Status before his current status expires (look to the date on his I-94 document). The USCIS recommends that individuals apply to extend their status at least 45 days before the status expires. He will need to provide documentation evidencing the reason for the extension along with the Form I-539.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can more than one (1) employer file a temporary (part-time) H1B visa application on my behalf at the same time? For a part time H1B work, 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 #9
Simply put, yes more than one employer can file a temporary part-time H-1B visa application for you during the same time period, as long as a certified LCA covering the jurisdiction of employment is obtained and the I-129 petition and additional supporting documentation reflects this part-time period. 40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time.

Question #10 – Employment Based Immigration – Green Card
My husband and daughter have received their Green Cards but I didn’t get mine. I filed for our green cards through my employer. Is there a problem with my case?

Answer #10
Based on the information provided, it seems like there may be an issue with the production/issuance/mailing of your Green Card. Your husband and daughter 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 husband and daughter 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 60 days from the date your husband and daughter received their GCs by calling the National Customer Service Center at 1-800-375-5283.

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, February 18th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.